Gerald Bunting v. Sea Ray Inc.

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No. 96-1080
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Gerald Bunting, Representative *
of Decedent Tracy Bunting, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the Eastern
* District of Missouri.
Sea Ray, Inc.; Mercury Marine, *
A Division of Brunswick *
Corporation, *
*
Appellees. *
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Submitted: September 9, 1996
Filed: November 4, 1996
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Before FAGG, HEANEY, and BEAM, Circuit Judges.
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BEAM, Circuit Judge.
Gerald Bunting appeals the district court's1 denial of his motion for
a new trial after an adverse jury verdict on his products liability and
wrongful death action. He also appeals several of the district court's
evidentiary rulings. We affirm.
I. BACKGROUND
On September 9, 1990, Tracy Bunting (Tracy) died of carbon monoxide
poisoning while swimming near his parents' boat on Peaceful Valley Lake,
Missouri. The boat was a Sea Ray Runabout with a 230 horsepower Mercruiser
motor. The rear of the boat had
1
The Honorable William S. Bahn, United States Magistrate Judge
for the Eastern District of Missouri, trying the case by consent of
the parties under 28 U.S.C. § 636.
a platform, from which swimmers could enter and exit the boat. This device
was located above the motor and propeller.
On the night of his death, Tracy and three companions left a wedding
reception and went boating on the lake around 3:00 a.m., even though the
boat had been experiencing battery trouble. The four friends decided to
go swimming, entering the water from the swim platform. Because of the
battery problems, Tracy left the boat running, in neutral, while he swam
off the rear of the boat. After awhile, two of Tracy's friends returned
to the craft while Tracy and his companion continued to swim. After some
time, one of Tracy's friends on the boat called out to him, to no avail.
After searching for Tracy, the friend finally found Tracy floating face
down in the water, dead. Tracy's swimming companion, who also died in the
accident, was not located until several days later.
Tracy's father, Gerald Bunting, brought this wrongful death,
negligence, design defect products liability, and failure to warn products
liability action against the boat manufacturer, Sea Ray, and the motor
manufacturer, Mercury Marine. Bunting alleged that the boat and motor were
defective in that they allowed too high a concentration of carbon monoxide
to gather around the boat and motor. He further contended that the
defendants knew of the dangers of carbon monoxide, yet failed to warn the
users of those perils.
Before trial, Bunting filed a motion in limine to exclude evidence
that Tracy had been drinking alcohol on the night of his death. The court
did not rule on the motion, but allowed such evidence to be presented at
trial.
At trial, Bunting attempted to introduce various reports and results
of experimental tests to show that the defendants knew of the danger of
carbon monoxide in and around their boats, but failed to warn the products'
users. The court admitted some of this
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evidence, but excluded some as well because it was cumulative, not
relevant, and the circumstances of the experimental tests were not similar
to the actual conditions of the accident.
The jury returned a verdict in favor of the defendants on all claims.
Bunting made a motion for a new trial, which the district court denied.
Bunting appeals that denial, alleging that: (1) the court made prejudicial
comments in the presence of the jury; (2) the court's discovery rulings
substantially and unfairly prejudiced Bunting's ability to prepare his case
for trial; and (3) the jury verdict was against the weight of the evidence.
He also contends that the court committed reversible error in admitting
evidence of Tracy's blood alcohol level and in various other evidentiary
rulings. We address each argument in turn.
II. DISCUSSION
A. Motion for New Trial
1. Prejudicial Comments
Bunting argues that the trial judge made numerous inappropriate
comments during the trial, evidencing both disdain for Bunting's counsel
and the merits of his case, and that such comments require a new trial.
Bunting failed, however, to object to the remarks at the time they were
made. Therefore, we review these allegations for plain error. See Rush
v. Smith, 56 F.3d 918, 922 (8th Cir. 1995), cert. denied, 116 S. Ct. 409
(1995). We will reverse only when a judge's comments were so pervasive as
to affect the outcome of the trial and result in a miscarriage of justice.
Id.
A trial judge has the duty to maintain an atmosphere free from
prejudicial comment. See, e.g., id. at 921. After careful review of the
record, however, including the context in which each of the
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challenged statements were made, we feel that the trial judge in this case
maintained such an ambiance. Several of the challenged statements relied
upon by Bunting were made at sidebars, outside of the jury's hearing.2
Others could not fairly be considered biased3 and still others were likely
more damaging to the defense than to Bunting.4 Although some of the trial
judge's statements may have been unnecessary, on this record, the comments
do not rise to the level of plain error.
2
At one side bar conference, counsel and the judge engaged in
a discussion regarding whether one of defendants' experts was a
surprise witness. After determining that the witness had been
known to plaintiff's lawyer for quite some time, the following
conversation took place.
Court: Well, it has something to do with your
credibility with me. You look me right in the eyes and
tell me lies.
Counsel: Well, thanks for telling the jury.
Court: You tell me lies right to my face.
Counsel: Judge, I did not . . . tell you a lie.
Court: Never mind. Let's get beyond that. I'm not
interested in whether you lie to me or not. A lot of
lawyers lie to me. That doesn't bother me.
Trial Tr. vol. V at 132.
3
After what the court perceived as a hostile reaction from
plaintiff's counsel, the court remarked:
Well, I, -- don't be hostile, because I don't rule in
your favor, Mr. Goldberg, I don't do that. I don't like
Goldberg any more than I like Mueller. As a matter of
fact, if I were put to the test, I don't know who I'd
like best.
Trial Tr. vol. II at 56-57.
4
At another side bar conference, the court encouraged
plaintiff's counsel to shorten his cross-examination of a witness,
by stating that the jury was getting bored with it. The court
stated: "Mike, I don't know where you're going. You've proven all
that you've proved the lethal aspects of it. . . . You've proved
all the things that make your case." Trial Tr. vol. IV at 272
(emphasis added).
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2. Discovery Rulings
Bunting argues that a new trial should be granted because the
district court erred in its discovery rulings. The conduct of discovery
is committed to the trial court's sound discretion. Baker v. General
Motors Corp., 86 F.3d 811, 816 (8th Cir. 1996). A new trial will only be
granted if the errors complained of amount to a gross abuse of discretion
resulting in fundamental unfairness. Derby v. Godfather's Pizza, Inc., 45
F.3d 1212, 1215 (8th Cir. 1995). Therefore, our scope of review is both
narrow and deferential. Baker, 86 F.3d at 816.
Bunting claims that he never received information he requested via
interrogatories and, due to the late compliance by the defendants, he was
denied adequate time to prepare for defendants' expert witnesses. The crux
of Bunting's argument in this regard is that the "trial court's refusal to
grant sanctions effectively condoned defendants' obstructionist tactics."
Appellant's Brief at 49. We note that Bunting did not ask the district
court for more time to prepare for the witnesses or for more time to obtain
rebuttal evidence. Further, Bunting has not shown how he was prejudiced
by the court's rulings. We find no abuse of discretion.
3. Jury Verdict
Bunting further contends that a new trial should be granted because
the jury verdict was against the weight of the evidence. The district
court's denial of a motion for a new trial on grounds that the jury verdict
is against the weight of the evidence is "``virtually unassailable on
appeal.'" Peterson v. General Motors Corp., 904 F.2d 436, 440 (8th Cir.
1990) (quoting Grogg v. Missouri Pac. R.R., 841 F.2d 210, 214 (8th Cir.
1988)). Our review is very deferential, and on review of the record we
find sufficient evidence to support the verdict.
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B. Alleged Evidentiary Errors
1. Blood Alcohol Level
Before trial, Bunting filed a motion in limine to exclude the
evidence of Tracy's blood alcohol content. Although the court did not rule
on the motion, it allowed the evidence to be presented at trial. A trial
court's evidentiary decisions are reviewed under an abuse of discretion
standard. Adams v. Fuqua Indus., 820 F.2d 271, 273 (8th Cir. 1987). We
find no abuse of discretion. Bunting himself opened the door to the
introduction of such evidence during his case-in-chief. Bunting,
therefore, cannot now claim such introduction was error. Starks v. Rent-A-
Center, 58 F.3d 358, 362 (8th Cir. 1995) (where litigant claiming error
opens door and invites error, court will not find reversible error).
Bunting opened the door by: (1) introducing the autopsy report referring
to the level of alcohol in Tracy's spinal fluid; and (2) questioning his
own expert witness regarding the possible effects of alcohol on Tracy's
actions on the night of his death.5
Even if Bunting had not opened the door to this evidence, we find
that Tracy's blood alcohol level was relevant to the question of whether
Tracy would have heeded an additional warning, had one been present on the
boat. Because this is a required element of
5
During his direct examination of Dr. Mary Case, the Chief
Medical Examiner for St. Louis County, Bunting introduced the
autopsy report concerning Tracy's death. That report included a
reference to the level of ethanol (ethyl alcohol) in Tracy's spinal
fluid. That amount translates directly to blood alcohol level.
Once the autopsy report was in evidence, defendants were entitled
to cross-examine the witness about the report.
Also during Bunting's case-in-chief, Dr. Jesse Bindansent, one
of Bunting's expert witnesses, testified about the probable effects
of alcohol, if any, on Tracy's actions on the night of his death.
Once again, defendants were free to cross-examine on this issue.
Because Bunting had opened the door, defendants were also entitled
to use such evidence in their closing arguments.
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proof of a failure to warn products liability case under Missouri law,6 see
Campbell v. American Crane Corp., 60 F.3d 1329, 1331 (8th Cir. 1995);
Arnold v. Ingersoll-Rand Co., 834 S.W.2d 192, 194 (Mo. 1992), we find that
the court's decision to admit this evidence was correct.
2. Other Evidentiary Rulings
Bunting contends that the district court made various other
evidentiary mistakes in allowing and excluding certain evidence. We have
reviewed the record and find no abuse of discretion.
Bunting attempted to adduce evidence that defendants knew of the
dangers of carbon monoxide in and around boats by introducing reports
detailing such dangers. Some of the defendants' officials had apparently
helped in the preparation of the reports. As the district court found,
this evidence only referred to cabin craft, instead of the type of open air
boat involved in Tracy's accident, without reference to the dangers posed
by carbon monoxide in the ambient air. Therefore, we find that the court
correctly excluded this evidence as irrelevant.
The district court also excluded a videotape offered by Bunting
depicting lake residents swimming near the rear of similar boats, yet
admitted a videotape of boat exhaust fumes offered by the defendants. The
court excluded Bunting's videotape because it simply showed persons
swimming off the back of boats, something Tracy's brother had just
testified about in great detail. It was within the court's discretion to
exclude such evidence as
6
Under Missouri law, the causation element in a failure to
warn case is two-pronged: "(1) the product for which there was no
warning must have caused [the person's] injuries, and (2) the
plaintiff must show that a warning would have altered the behavior
of those involved in the accident." Campbell v. American Crane
Corp., 60 F.3d 1329, 1331 (8th Cir. 1995) (emphasis added).
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cumulative. Sparks v. Shelter Life Ins. Co., 838 F.2d 987, 991 (8th Cir.
1988). In contrast, the court allowed the presentation of the videotape
offered by defendants which showed heavy exhaust fumes emitted from an
engine similar to that involved in Tracy's accident. In showing that the
machines depicted by the videotape were of a similar type as the engine on
Tracy's boat, the defendants laid the proper foundation for and established
the relevance of the evidence. Therefore, the admission of this tape was
within the sound discretion of the district court.
Bunting also attempted to introduce evidence of carbon monoxide tests
conducted on boats at Blue Mesa Lake, Colorado, to show defendants'
knowledge of the danger of carbon monoxide in and around boats. The
question of the admissibility of experimental tests in products liability
cases is, likewise, committed to the sound discretion of the trial court.
McKnight v. Johnson Controls, Inc., 36 F.3d 1396, 1401 (8th Cir. 1994).
Here, the district court found that the setting of the tests was too
dissimilar to the facts of this case. We agree. The Blue Mesa tests were
done on twin engine cabin cruisers at an altitude of approximately 6,000
feet. It is well established that in order to introduce evidence of
experimental tests, one must first show that the "tests were conducted
under conditions substantially similar to the actual conditions." Id.
Bunting failed to make such a showing. We therefore find that the district
court correctly excluded this evidence. We have considered the remainder
of Bunting's arguments and find them to be without merit.
III. CONCLUSION
Finding no error in the district court's evidentiary rulings or in
its denial of Bunting's motion for a new trial, we affirm.
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A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
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