D.C. No. 5:10-CV-00999-HE (W.D. Okla.)
Before HARTZ, O'BRIEN, and TYMKOVICH, Circuit Judges.
ORDER AND JUDGMENT [*]
Terrence L. O'Brien United States Circuit Judge
No one knows how it happened, but on the morning of February 10, 2010, Cliff Smith found himself entwined in the auger of a truck-mounted drill rig. The accident caused severe disabling injuries, including the loss of his right arm and leg. He brought an action against the manufacturer of the rig, Central Mine Equipment Company (CME). His complaint alleged strict product liability and negligent design. He appeals from a summary judgment in favor of CME on his strict liability claim and alleges trial errors led to a jury verdict absolving CME's negligence. We affirm.
A. The Drill
CME designed and manufactured the offending equipment, a CME-55 truck-mounted auger drill, (the Drill) in 1981 and first sold it in 1982. In 1989, it was returned as a trade-in and remained in CME's fleet until 1992. While at its facilities, CME placed a "wobble-switch system" on it. This system consisted of sensor rods attached to switches. The sensor rods hung down on both sides of the Drill mechanism and were positioned so that a person would touch the sensor rod before coming into contact with the auger. Touching the sensor rod would open the switch, shut the unit down, and stop the auger from turning. The Drill also had emergency switches on both the operator's side and the helper's side of the Drill. When these switches were pressed, the Drill would shut down. At the time CME sold the Drill to a Texas company in 1992, the wobble-switch system and the emergency shut-down buttons were operational.
The Drill was sold to at least one other company before Smith's employer, Burgess Engineering and Testing Company (Burgess), purchased it in 1999. When Burgess bought the Drill, the wobble-switch system and the emergency switches were no longer operable. In 2000, Burgess sent the Drill to CME for the limited purpose of adding an "automatic hammer." In November 2000, CME's quality control manager prepared an inspection report on the Drill and noted the wobble switches were gone. Burgess's owner was advised of the problem but declined to have them replaced.
Smith began part-time work with Burgess in 2002 as a driver and mechanic. At that time, Burgess had two CME drill rigs—the Drill and a track mounted CME-45. Smith was employed full-time in late 2004/early 2005. By that time, Burgess had also acquired a used 1998 CME-75 and had ordered a new (2004 model) CME-55 (New Drill). The 1998 CME-75 rig had wobble switches. When Smith went to CME to take possession of the New Drill for Burgess, CME instructed him on its operation, including instruction on the wobble-switch system.
From 2005 until the day of the accident, Smith was the head drill operator; as such, he was responsible for the maintenance of Burgess's four CME drill rigs. He considered himself an experienced driller/rig operator. At some point prior to the accident, Smith replaced one of the wobble switches on one of the other drills.
From 2005 through 2010, Smith operated the Drill over a hundred times. He understood that all of the drills were dangerous pieces of equipment. He knew he should not get close to the auger; it was an open and obvious danger. Smith acknowledged that wobble switches should be on every drill rig because they make the rig much safer. Despite his knowledge that the Drill lacked operational safety equipment, making it more dangerous than it would be otherwise, he used it almost every day.
Smith does not know how he got caught in the auger and has no memory of what happened. The last thing he remembered was having drilled to five feet and his helper, Derek Counts, had taken a soil sample to the side of the truck for testing. Smith's next memory was calling his boss to tell him he would not be able to finish the job that day.
A. Summary Judgment – Strict Liability
Smith claimed CME was strictly liable because it had placed a defective product, the Drill, in the marketplace. He also claimed CME negligently designed the Drill. Both claims were based on the lack of a guard around the auger and CME's failure to design the clutch lever with a "deadman switch" to cut the power if the operator's hand released the lever. Both parties moved for summary judgment. Relevant here, the district judge entered summary judgment in favor of CME on the strict product liability claim. He concluded Smith could not show the rig was unreasonably dangerous beyond the expectations of a foreseeable user. By doing so, it was unnecessary to decide CME's argument regarding assumption of risk. He denied CME's summary judgment motion on Smith's negligence claim because there was a question of fact as to whether CME used due care in designing the drill rig. In summary, the only issue submitted to the jury was negligent design.
B. Pre-Trial Evidentiary Rulings – Negligent Design
Prior to the negligent design trial, the judge granted, in part, CME's motion to exclude two sources of evidence. First, he excluded some testimony proposed by Smith's expert, William Munsell. Munsell was prepared to testify CME's design was negligent because CME did not incorporate a deadman switch and, in 1982, CME had the technology and ability to place one on the Drill at a reasonable cost. Munsell had developed a deadman switch which he planned to demonstrate at trial. CME sought to have Munsell's proposed testimony excluded because, in its view, he was not a qualified expert, his opinions were not supported by sound scientific methodology, and his alternative design had never been tested on a truck-mounted rig in the field. The judge denied CME's motion, but limited Munsell to stating his design worked in the lab; Munsell would not be permitted to testify that his design would work in the field.
The judge also excluded evidence of events occurring after 1992, the date CME last had control of the Drill. He determined any later events were not relevant to CME's liability for negligent design. Smith protested because the limitation prevented him from examining witnesses about a 2008 accident involving a CME drill. At that time, a Canadian rig operator was killed when he fell into an auger attached to a CME drill. Following the accident, Dan Carrocci, the operator's employer, designed, built, and used a barrier guard on his three CME rigs. In 2009, Carrocci brought his design to CME and repeatedly tried to convince CME's president, David Neibert, to try the guard and consider incorporating it into CME's design. Neibert declined. In addition, Smith said the evidence ...