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Cooper v. Firestone Tire and Rubber Co.

filed: September 26, 1991.

LUDIS J. COOPER, PLAINTIFF-APPELLEE,
v.
THE FIRESTONE TIRE AND RUBBER COMPANY, DEFENDANT, AND THE BUDD COMPANY, DEFENDANT-APPELLANT. LUDIS J. COOPER, PLAINTIFF-APPELLEE, V. THE FIRESTONE TIRE AND RUBBER COMPANY, DEFENDANT-APPELLANT.



Appeal from the United States District Court for the District of Arizona. D.C. No. CV-86-87-RMB. D.C. No. CV-86-0087-RMB. Richard M. Bilby, Chief District Judge, Presiding.

James R. Browning, Harry Pregerson and Stephen S. Trott, Circuit Judges. Opinion by Judge Browning.

Author: Browning

BROWNING, Circuit Judge

Firestone Tire & Rubber Co. and The Budd Co. appeal from the district court's denial of their motion for new trial or remittur. We affirm.

BACKGROUND

Ludis J. Cooper was injured in the course of his employment as a tire repairman when a multi-piece truck rim, known as the RH5 degree, explosively separated as he was servicing a wheel and tire. The injury required amputation of Cooper's right hand and part of his right forearm and increased the risk of quadriplegia upon any subsequent trauma to his head or neck.

Cooper sued appellant Firestone, manufacturer of the RH5 degree, and appellant Budd, manufacturer of the mounting disc to which the RH5 degree was affixed. Federal jurisdiction was based upon diversity of citizenship. Cooper's second amended complaint asserted negligence and strict liability based upon design and manufacturing defects and failure to warn, and sought punitive damages. The district court dismissed the strict liability and failure to warn claims prior to trial and granted a directed verdict on the manufacturing defect and punitive damages claims at the close of his case. The jury found in favor of Cooper on the remaining claim of negligent design. The jury also found Cooper contributorily negligent in failing to use a restraining device while servicing the wheel and tire. The jury allocated 55% fault to Firestone, 35% to Budd and 10% to Cooper. Damages were awarded in the sum of $2,199,366.30. Appellants' motion for a new trial or remittur was denied by the trial court. This appeal followed. We affirm.

I

Appellants contend the trial court erred in admitting evidence of other accidents involving the RH5 degree to impeach appellants' experts without showing a "substantial similarity" between the other accidents and Cooper's accident. Appellants' experts had testified the RH5 degree design was safe and competent, and the evidence of other accidents involving the RH5 degree was introduced by Cooper during cross-examination of these witnesses to test their credibility. Appellants argue it was improper for the court to admit such evidence even for impeachment purposes without a showing of substantial similarity.

A showing of substantial similarity is required when a plaintiff attempts to introduce evidence of other accidents as direct proof of negligence, a design defect, or notice of the defect. See, e.g., Pau v. Yosemite Park and Curry Co., 928 F.2d 880, 889 (9th Cir. 1991); Jackson v. Firestone Tire & Rubber Co., 788 F.2d 1070, 1082-83 (5th Cir. 1986); Brooks v. Chrysler Corp., 252 U.S. App. D.C. 29, 786 F.2d 1191, 1195 (D.C. Cir. 1986); Borden, Inc. v. Florida East Coast Ry. Co., 772 F.2d 750, 754 (11th Cir. 1985); McKinnon v. Skil Corp., 638 F.2d 270, 277 (1st Cir. 1981); Julander v. Ford Motor Co., 488 F.2d 839, 846-47 (10th Cir. 1973). The rule rests on the concern that evidence of dissimilar accidents lacks the relevance required for admissibility under Federal Rules of Evidence 401 and 402. See Pettyjohn v. Kalamazoo Center Corp., 868 F.2d 879, 881 (6th Cir. 1989); McGonigal v. Gearhart Indus., Inc., 851 F.2d 774, 778 (5th Cir. 1988).

The circuits are split regarding whether evidence of dissimilar accidents is admissible for impeachment. Compare Wheeler v. John Deere Co., 862 F.2d 1404, 1409 (10th Cir. 1988) (inadmissible) with Hale v. Firestone Tire & Rubber Co., 820 F.2d 928, 934-35 (8th Cir. 1987) (admissible). We agree with the Eighth Circuit that evidence of dissimilar accidents may be admitted when relevant to the witness's credibility. The problem of relevancy involved when plaintiffs have sought to introduce evidence of dissimilar accidents in their case-in-chief is not present when the evidence is relevant to credibility.

There is no doubt that the evidence of dissimilar accidents involving the RH5 degree introduced in this case was relevant to the credibility of appellants' expert witnesses. When an expert testifies that a product is generally safe, as appellants' experts did, the witness's credibility can be undermined by showing the witness had knowledge of prior accidents caused by the product. See Hale, 820 F.2d at 935. The evidence of other accidents, whether similar or not, tends to show the witness's claims of product safety are overstated and the witness therefore may not be reliable.

Appellants argue nonetheless that it would be bad policy to allow such impeachment because it would deter manufacturers from bringing knowledgeable experts into court, since experts with wide practical experience are likely to have encountered dissimilar accidents. It is not the expert's knowledge of prior accidents that triggers the admissibility of evidence of other accidents, however, but the expert's assertion that the product involved is generally safe. If an expert restricts his testimony to the product's safety with respect to the type of accident at issue, or acknowledges on direct examination the occurrence of prior accidents in dissimilar circumstances, evidence of such accidents will not be relevant to his credibility and will not be admissible.

Appellants argue appellee's evidence of other accidents should have been excluded under Federal Rule of Evidence 403. "We review the district court's decisions balancing the probative value of evidence against its prejudicial effect for abuse of discretion." United States v. Kessi, 868 F.2d 1097, 1107 (9th Cir. 1989). Although the other-accident evidence may have had some prejudicial effect, it was also highly probative of the credibility of the assertion of ...


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