No. 84-279
IN THE SUPREME COURT OF THE STATE OF MONTANA
1986
DONALD TACKE,
Plaintiff and. Appellant,
-vs-
VERMEER MANUFACTURING CO.,
Defendant and Respondent.
APPEAL FROM: District Court of the Eighth Judicial District,
In and for the County of Cascade,
The Honorable John M. McCarvel, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Regnier, Lewis & Boland; Stephens D. Roberts argued,
Grea-t Falls, Montana
For Respondent:
Marra, Wenz, Johnson & Hopkins; Jospeh Marra & David
E. Bauer argued, Great Falls, Montana
Submitted: October 29, 1955
Decided: January 23, 1986
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Clerk
Mr. Chief Justice 2 . A. Turnage delivered the Opinion of the
Court.
Plaintiff appeals a jury verdict entered in the Eighth
Judicial District, Cascade County, on May 15, 1984, in favor
of defendant, manufacturer and. seller of Vermeer 605C large
round hay baler with compression feed rollers. Plaintiff
lost part of his right foot as a result of an accident in-
volving the compression feed rollers.
We remand for a new trial. Because of instructional
a.nd procedural error, including a denial of a juror challenge
for ca.use, plaintiff was denied a fair trial.
Donald Tacke filed a complaint against Vermeer Manufac-
turing Company (Vermeer) on September 10, 1.982, to recover
compensatory and punitive damages for personal injuries
suffered on September 12, 1973. Vermeer manufactured and
sold the Vermeer 605C large round hay baler with compression
feed rollers involved in the partial amputation of plain-
tiff's right foot. Plaintiff sued under theories of strict
products liability, negligence and breach of warranty.
Following jury trial which commenced on March 26, 1984, the
jury returned a 9-3 verdict in favor of defendant.
Plaintiff appeals, raising the following issues for our
consideration:
1. Was it reversible error to deny the challenge for
cause of a prospective juror who was the wife of a local
seller of the manufacturer's prod-uct?
2. Was it reversible error to exclude evidence of
similar accidents involving the product and to narrow strict-
ly the "similar accident" definition?
3. Was it reversible error to allow defense to elicit
expert testimony from a witness never listed in pretrial
discovery as a proposed expert?
4. Was it reversible error for the trial court to
offer instruction no. 13 which misstated plaintiff's theory
of the case and denied plaintiff two of his contentions?
5. Was it reversible error to offer the court's in-
struction no. 2 0 on manufacturer's duty to warn which was in
conflict with the evidence and the law?
Because we find sufficient reason to remand, we will
not consider additional issues raised, including judicial
comment upon testimony in the presence of the jury, an in-
struction given on proximate cause, plaintiff's refused
instruction on defects that enhance injuries, and a refusal
to accept an offer of proof in rebuttal to defendant's open-
ing statements.
Donald Tacke, a hired hand at the Mehmke ranch east of
Great Fal-ls, Montana, was baling barley straw, pulling a
Vermeer 6 0 5 C large round baler behind the tractor. Vermeer
balers have no engines; they operate on power transferred
from the tractor through a power take-off (PTO) shaft. This
particular model has compression rollers. As the baler is
pulled through the field, its pickup reel with revolving
meta.1 pickup teeth turns rapidly and lifts the already
swathed or combined crop from the ground. The pickup reel
guides the straw into two compression rollers which operate
under 8 0 0 pounds of pressure to press the straw into a kind
of ribbon to feed into the bale chamber. In the bale chamber
a series of belts compacts the straw into a tight round hale
about six feet by five feet. The tightness of the bale is
determined by the belts in the belt chamber.
Tacke had run into problems with straw building up in
front of the compression rollers, plugging up and preventing
further feeding of straw into the machine. As he had many
times before, he dismounted from the tractor leaving the PTO
on. His boss had done the same thing, warning not to do so:
"Do as I say, not as I do." There was a decal on the machine
recommending turning off the PTO. However, it was a common
practice not to turn off the PTO if the build-up was in front
of the rollers because it took longer with the machine off to
clear the plug. The operator had to get in and manually pull
out the straw. With the PTO on, a quick kick could clear the
plug. The 605C plugged frequently, and the frustration to
get the job done led the operators to choose expedience. On
September 12, 1979, when Tacke kicked the plug with his foot,
the compression rollers pulled his foot in, and he Lost part
of his right foot.
Vermeer now also makes open-throat balers in which the
hay feeds directly into the bale chamber. Gary Vermeer
designed the compression roller baler in 1975, although he
knew that the previous Allis Chalmers model had accidents in
its feed rollers. There were other patented concepts for
noncompression roller balers when Vermeer marketed the 605C
in 1972. When this baler was sold in 1.975, Sperry-Holland
had already marketed an open-throat baler.
Stanley Vermeer, Gary's son, designed an open-throat
model which Vermeer marketed after July 1976. He testified
by deposition that the open-throat model eliminated one place
where humans could be jnjured--the feed in-take area. Nei-
ther of the Vermeers had training in engineering or design.
During the jury selection on March 26, 1984, prospec-
tive juror Jean Mundt informed the court that her husband
sold Vermeer balers for the area. The court denied plain-
tiff's challenge for cause of juror Mundt even though she
thought her husband might have sold the baler involved in the
case. She knew that her husband and Carl Mehmke, owner of
the baler, "had worked together on this project." She be-
lieved that her husband thought the product was safe. When
questioned as to any difficulty in being equally fair to both
sides, she said, "F'ell, perhaps. I can't--I don't know.
Perhaps I would." She then stated that she thought if she
heard the whole thing she could judge it. The court denied
plaintiff's second attempt to challenge juror Mundt for
cause, concluding that she would be fair and impartial-.
Finally, plaintiff was forced to use a peremptory challenge
and did not have a peremptory chal-lenge left to exclude a
prospective juror who indicated that certain product liabili-
ty suits were specious and pricing manufacturers out of
business.
At trial, plaintiff's theory of the case was that the
Vermeer 605C baler was defective and unreasonably dangerous
because compression feed rollers were an unnecessary hazard
and were inadequately guarded, warning decals violated indus-
try standards and were inadequate, and lack of an emergency
shut-off in the design unreasonably enhanced plaintiff's
injuries. Plaintiff presented expert testimony to demon-
strate that the hazards were unreasonable because design
modification could guard against the compression rollers.
Further, the design was unnecessary in the first place be-
cause Vermeer and others had successfully designed and sold
balers without compression rollers and the state of the art
would have allowed it in 1975 when the baler was purchased.
Plaintiff tried to present testimony that Vermeer had
notice that the 605C was unsafe because numerous accidents
were reported, in contrast to no accidents reported in its
bale chamber on open-throat balers. The court refused to
allow the evidence on open-throat balers. The court also
strictly limited the introduction of accidents to those
feed-intake accidents in which the PTO was left on when the
operator left the tractor, " ... similar accidents where
there has been an intentional act on the part of the operator
for getting into those compression rollers while the PTO was
operating."
Plaintiff's counsel in his case-in-chief presented
expert testimony from John Sevart, a licensed professional
mechanical engineer in private practice with experience in
safety and human factors in the design of mechanical equip-
ment. Plaintiff also called Ivan Brand, production safety
director at Vermeer since 1977, as an adverse witness. His
duty at Vermeer is devoted primarily to product liability
litigation. Before he took this position in 1977, Vermeer
had no safety director.
Defense counsel in his case-in-chief called Randall
Swanson and Roger MacCarthy to testify as experts and pre-
sented expert testimony from Lee Carr by deposition. Vermeer
had listed these three as experts in answer to interrogato-
ries requesting that TJermeer furnish names of experts and
expected subject matter.
Defense also called George McConeghy, a former employee
of Massey Ferguson ("Massey"), who was apparently present to
discuss the arms-length transaction between Massey and
Vermeer in the purchase of balers to sell under the Massey
trademark. McConeghy was not listed as an expert witness.
In his trial testimony, he narrowed the input of his company
on the balers to a "subjective safety evaluation" with him as
"more or less the team leader in a rough sort of way," pro-
viding "both functional and subjective safety evaluations."
Under cross-examination, McConeghy stated that he never
worked as an engineer on the hoard at Massey and had no
training in human factors. His testimony basically centered
upon the fact that Vermeer was the only manufacturer which
would let Massey market its baler in exchange for a "hold.
harmless" deal. On redirect examination, defense asked for
McConeghy's expert opinion: "Do you believe that t.his ma-
chine is defective or unreasonably unsa-fe?" Plaintiff's
objection was overruled, and McConeghy proceeded to testify
emphatically that the machine was not defective nor unsafe,
and that the cause of the accident was operator omission and
commission.
In settling jury instructions, the court gave its own
instruction no. 13:
You are instructed that: The Plaintiff
has alleged that the Defendant manufac-
tured the Vermeer 605C baler which was
defectively designed and unreasona.bly
dangerous for its intended use because
the power operated rollers were not
covered by a.ny guarding or protective
device, and the Defendant did not ade-
quately warn the Pl.ai.ntiff of the
danger.
In order to recover on the allegation of
the design defect, the Plaintiff must
prove :
First, that the Defendant designed and
manufactured the 605C round hay baler
which at the time of manufacture was
defective in design and unreasonably
dangerous to the user because the power
operated rollers were not covered by any
guarding or protective device or the
warnings of the danger were inadequate.
Second, that at the time of the accident
the 605C round hay baler was being used
by Donald Tacke in a ma.nner reasonably
anticipated by the Defendant.
Third, that the defective design of the
605C round. hay baler or inadequate
warnings of the danger proximately
caused injury to the Plaintiff.
Plaintiff objected that the court' s instruction left out the
central. contention that the roll-ers were an unnecessary
hazard in the first place.
The court also offered its own instruction no. 20 on
duty to warn, despite plaintiff's objections to the last two
sentences:
... There is no duty on the part of a
manufacturer to give a warning of a
product-connected danger where the
person who claims to be entitled to the
warning actually knows of the danger. A
person is not entitled to be warned
about something he already knows.
John Sevart, plaintiff ' s expert had testified at the trial:
The purpose of an appropriately designed
warning is to reduce the risk associated
with the hazard in two ways. First to
inform the uninformed or the inexperi-
enced person, and secondly to remind -
the
person - - knowledgeable of the
who is
machine tha.t might forget that the
hazard was present. [Emphasis a d d e m
Ivan Brand, Vermeer's corporate representative, also conceded
that one purpose of an adequate warning would be to remind
someone of a known hazard. or danger. Brand acknowledged that
the warning decal sent out two years after Tacke's accident
complied with applicable industry standards, unlike the decal
at the time of the accident which did not include the appro-
priate signal word, colors, or recommended safety alert
symbol. The later symbol specifically described the hazards
of the compression rollers and had a drawing of a person
caught in the rollers. In contrast, the worn decal on the
baler Tacke operated had a warning: "Caution Accidents can
be avoided by observing the rules for safety given below."
Below in small-er letters were six instructions. Number 2
said to disengage PTO before leaving tractor seat; Number 5
admonished to use "adequate HP tractor"; and Number 6 recom-
mended studying the manual before operating the machine.
Nowhere was there specific warning on the hazard of the
rollers.
Refusal - dismiss juror for cause.
to This Court recent-
ly held that the standard of review of denial of juror chal-
lenges is that for review of other findings and judgments,
i.. , a requirement of abuse of discretion for reversal.
Abernathy v. Eline Oil Field Services, Inc. (Mont. 1982), 650
P.2d 772, 778, 39 St.Rep. 1688, 1695. There we vacated and
remanded a judgment for the defendant where the court erred
in failing to dismiss a juror for cause and then proceeded to
rehabilitate the juror in examination of the juror.
Here, the court twice refused to dismiss the juror: (1)
where there was a relationship or an interest in the action
as proscribed in § 25-7-223(5), MCA (husband sold the partic-
ular type of baler); and (2) where there was bias as pro-
scribed under $ 25-7-223(7), MCA (wife did not know if she
could be fair but "probably could," her husband thought the
baler was safe, and persons were responsible for themselves
on the farm). As in Abernathy, plaintiff was forced to his
prejudice to exercise a peremptory challenge. Although the
court did not, as in Abernathy, engage in its own rehabilita-
tive examination, the court forced plaintiff's counsel to
needless colloquy with the juror in which she demonstrated
her confusion as to how she could be "fair."
We hold that denial- of plaintiff's challenge for cause
of juror Mundt amounted to an abuse of discretion, meriting
the grant of a new trial.
I1
Excluded evidence - other Vermeer compression roller
of
accidents. Appellant contends that in plaintiff's attempts
to show defendant knew that the compression rollers are an
unnecessary hazard, the court erred in excluding as inadmis-
sible evidence of other accidents of which defendant had
notice. Appellant further claims that the accidents were
relevant to show foreseea.bility of baler operator conduct,
failure to guard or to adequately warn, and greater suscepti-
bility of compression roller balers to feed-intake accidents.
Therefore, the excluded evidence was relevant to the issues
of whether the compression roller design rendered the product
defective and unreasonably dangerous and whether Vermeer had
notice of the design defect. Appellant claims all seventy-
two accidents were similar in that they involved injuries and
deaths to operators in the compression rollers, and this
evidence was highly probative on the issue of defectiveness.
Respondent counters that the court did not abuse its
discretion in excluding evidence of other feed-intake acci-
dents where the product and circumstances were not suhstan-
tially the same and plaintiff did not meet his burden of
proof to demonstrate the similarity to the case at bar.
Kuiper v. Goodyear Tire & Rubber Co. (Mont. 19831, 673 P.2d
1208, 1219, 40 St.Rep. 1861, 1872-1873. Respondent claims
that the court admitted the introduction of thirty accidents
"where there has been an intentional act on the part of the
operator for getting into those compression rollers while the
PTO was operating." Respondent contends plaintiff failed to
meet the requirement of showing that the inadmissible acci-
dents met this reasonable limitation.
We find the limitation was error and denied plaintiff
the opportunity to present relevant evidence on the notice
defendant had as to accidents specifically in the feed-intake
area, i.e., the location of the compression rollers.
Accidents need not be identical to be admissible.
". . . Absolute identity of circumstances is not necessary."
Runkle v. Burlington Northern (1980), 188 Mont. 286, 292, 613
P.2d 982, 986. We have said that a trial court should make
an effort "to allow the admission of evidence of only those
accidents where both the product and the circumstances sur-
rounding the accident were similar to the case at bar."
Kuiper, supra. Plaintiff sought to introduce only evidence
involving this product designed by Vermeer and circumstances
involving injuries or death in the compression rollers of
this product. We note that the plaintiff acquired knowledge
of the accidents from defendant's answers to interrogatories.
This list prepared by Vermeer indicated that Vermeer had
notice of injuries involving operator entanglement in the
compression rollers. This evidence was relevant and should
have been admitted. Furthermore, the list indicated the
magnitude of the alleged defect and foreseeability of opera-
tor conduct.
Eliciting expert testimony - - a witness not listed -
from as
an expert. Vermeer argues that the failure to list
McConeghy as an expert did not prejudice plaintiff when
plaintiff qualified the witness both in deposition and trial
questioning.
We disagree. It is widely understood that not all
testimony elicited in depositions is admissible in trial.
Satisfied by his probing in deposition that the witness had
no expertise in design of the balers a-nd by the interrogato-
ries that defendant did not intend to introduce McConeghy as
an expert witness, plaintiff confined his cross-examination
to peripheral issues such as warning decals, operators'
manuals, and the guarding by longer tines on the Massey
version of Vermeer 605C. In cross-examination testimony,
McConeghy testified as to safety procedures at Massey in
subjective evaluations of the machine, in putting out a
safety manual, and in designing decals to comply with indus-
try standards. In fact, he testified that Elassey substan-
tially relied on Vermeer's expertise in the large round baler
when it entered the contract and that he was not an expert on
the internal mechanization of the Vermeer machine.
On redirect examination, defense counsel asked, over
objection, McConeghy's opinion as to whether the machine was
defective or unreasonably unsafe. Not only was he not listed
as an expert, but there was no adequate foundation in trial
questioning to qualify him to give this opinion. We find the
court abused its discretion in admitting McConeghy's opinion
as expert testimony where he was not listed as an expert in
interrogatories and not qualified by trial testimony to give
expert testimony.
The court allowed McConeghy to testify as to his opin-
ion on the cause of the accident.
Opinion evidence concerning the cause of
an accident is admissible only if the
subject matter is beyond the ordinary
understanding of the jury. ... The
cause of the accident must be suffi-
ciently complex to require explanation.
[Citations omitted.]
Ployhar v. Board of Trustees of Missoula (Mont. 1980), 609
McConeghy, not qualified as an expert trained in human
factors or safety, testified to an opinion as to the cause of
an accident which was within the ordinary understanding of
the jury. This opinion invad.ed the province of the jury to
determine if plaintiff's acts of "omission," not turning off
the PTO, and "commission," reaching in and kicking the plug,
were the proximate cause of the a-ccident.
Court's instruction - -
no. 13. Appellant contends that
this instruction, given over objection, did not contain the
materia.1 contentions of plaintiff raised in pleadings and.
supported by evidence that the compression rollers were an
unnecessary hazard and that the machine had no emergency
shut-off device to minimize injuries. The central contention
at trial was that the rollers were an unnecessary haza.rd that
impaired the efficiency of the machine by causing frequent
plugging, thus encouraging operators to approach the area of
the hazard to clear the plugs while the power was engaged.
Appellant also presented evidence that the open-throat,
noncompression balers plugged less frequently, that Vermeer
sold open-throat balers for eight years before trial (and had
sold more of these tha.n the compression roller variety) and
that Vermeer had no notice of a single accident to an opera-
tor in the feed area of 35,000 open-throat Vermeer balers.
Vermeer's president under oath stated that elimination of the
compression rollers eliminated one place where humans could
be injured. In Vermeer's patent on its open-throat baler,
Vermeer stated that the starter roller provided an inherent
safety feature in eliminating the material compression roll-
er. Plaintiff's expert testified that based upon the technol-
ogy in 1975, the baler could and should have been
manufactured without compression rollers.
Appellant contends that he was entitled to have all of
his material contentions as to defectiveness and unreasonable
danger submitted to and determined by the jury and that it
was reversible error for the court to refuse to instruct on
the material issues of unnecessary hazard and enhancement of
in.juriesby lack of an emergency stop device. When the court
undertakes to offer its own instruction on the issues raised
by plaintiff, its statement must be complete. See Rand v.
Butte Electric Ry. Co. (1910), 40 Mont. 398, 107 P. 87.
Incompleteness alone, however, is not sufficient for reversal
if the failure to instruct was rendered harmless by an other-
wise adequate charge to the jury. Rand, supra.
Respondent claims that the instructions, weighed. as a
whole and read together in context, fully define the issues
and, therefore, no prejudicial, reversible error exists.
Gibson v. Western Fire Insurance Co. (Mont. 1984) , 682 P. 2d
725, 41 St.Rep. 1048. Respondent refers to seven other
instructj.ons which allegedly cover the issues: (1) No.
12--strict liability in tort; (2) No. 14--defective design;
(3) No. 16--reasonably foreseeable risks in environment;
(4) No. 17--"reasonably safe"; (5) No. 18--utility; (6) No.
21A--manufacturer not an insurer; (7) No. 2lB--"state of the
art."
We agree with appellant that the other instructions did
not allow the jury to consider his central contentions--that
the compression rollers were an unnecessary hazard and that
defendant enhanced injuries with failure to provide an emer-
gency stop device. The court's instruction told the jury that
unless the plaintiff proved that the compression rollers were
not covered by a guard or protective device or the warnings
were inadequate thereby causing the injury that he could not
recover on the design defect. This instruction amounted to a
directed verdict on plaintiff ' s central theory, that the
compression rollers constituted an unnecessary hazard which
rendered the machine defective and unreasonably dangerous.
When plaintiff objected and raised the issue of the unneces-
sary hazard, the court rejected his contention. It is re-
versible error to refuse to instruct on an important part of
a party' s theory of the case. Northwestern Union Trust Co.
v. Worm (Mont. 1983), 663 P.2d 325, 327, 40 St.Rep. 758, 761.
Where there was no question that plaintiff's case
rested upon the issue of design defect in that he alleged the
compression rollers were hazardous a ~ dunnecessary in the
first place, the court erred in refusing to so instruct.
While this may have appeared to the court as simpl-ification
of the issues, it did deprive the plaintiff of two of his
contentions and possible jury argument on the instruction. A
party has a right to have jury instructions which are adapt-
able to his theory of the case. Northwestern Union Trust Co.
v. Worm, supra; Williams v. Montana National Bank of Rozeman
(1975), 167 Kont. 24, 31, 534 P.2d 1247, 1251; Wollan v. Lord
(1963), 142 Mont. 498, 504, 385 P.2d 102, 106.
Court's instruction no. 20
- on
- duty to warn.
Instruction no. 20 concluded that a manufacturer has no duty
to warn a person who claims to be entitled to a warning if
the person actually knows of the danger. "A person is not
entitled to be warned about something he already knows."
Appellant contends that this instruction conflicted with the
testimony of both plaintiff's expert and Vermeer's corporate
represen.tative,Ivan Brand, that the purpose of a warning was
to remind someone of a known hazard. Brand admitted that the
decal did not comply with industry standards and that a decal
distributed two years after the injury d.id comply and could
help prevent serious injury. Tacke testified that he knew
generally that machines were dangerous but did not know that
he could become entangled in the rollers. The new decal
warned specifically of the compression roller danger and
showed a person. being caught in the rollers.
Respondent claims that warnings are required only if
the danger is not open and obvious, and only if the plaintiff
was unaware of the danger. Respondent misconstrues Brown v.
North American Mfg. Co. (1978), 176 Mont. 98, 576 P.2d 711,
in drawing an inference that there is no duty to warn of an
obvious danger, or drawing the inference further of no duty
to warn of what plaintiff already knew.
This Court in Brown, however, rejected the
patent/latent distinction as a bar to recovery, finding it a
rule to encourage misdesign. "Rather, the obvious character
of a defect or a danger is but a factor to be considered in
determining whether the plaintiff in fact assumed the risk."
Brown, 576 P.2d at 717. This Court also followed the rule on
duty to warn of dangers in potentially harmful but otherwise
"nondefective" products : if the product is unreasonably
dangerous and a warning should be given but is not given,
then the product is automatically wdefectFve." Brown, 576
P.2d at 718-719, citing Jacobsen v. Colorado Fuel & Iron
Corporation (9th Cir. 1969), 409 F.2d 1263, 1271. The court
erred under the facts of this case in instructing the jury
that there is no duty to warn of a known da-nger.
Vacated and remanded for a new trial.
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/T/ Chief Justice
We concur: