Douglas R. Tenbarge, Lilly Tenbarge v. Ames Taping Tool Systems, Inc.
Docket: 98-1900
Court: Court of Appeals for the Eighth Circuit; July 7, 1999; Federal Appellate Court
Douglas R. Tenbarge and Lilly Tenbarge appealed a decision from the U.S. Court of Appeals for the Eighth Circuit concerning a judgment in favor of Ames Taping Tool Systems, Inc. The case stemmed from Tenbarge's claims of cumulative injuries resulting from using the Ames Auto Taper (Bazooka) during his employment as a drywall installer from 1983 to 1993. The Bazooka, a heavy and awkward tool, required repetitive wrist motions and considerable pressure to operate, particularly in overhead work.
After being diagnosed with carpal tunnel syndrome (CTS) in 1991 and undergoing surgeries on both wrists, Tenbarge filed suit in 1994 alleging that Ames failed to warn users about the risks associated with the Bazooka. Ames removed the case to federal court, where it initially received summary judgment, which the appellate court later reversed, allowing the causation issue to be considered by a jury.
On remand, however, the district court granted judgment as a matter of law for Ames on the failure to warn claim, while the jury sided with Ames on Tenbarge's negligence, strict liability, and warranty claims. Testimony presented during the proceedings included that of Dr. Peter Nathan, an expert for Ames, who indicated uncertainty regarding the causes of Tenbarge's CTS, mentioning potential contributing factors like alcohol consumption and rheumatoid arthritis but could not definitively rule them out. The Eighth Circuit ultimately reversed the district court's judgment and remanded the case for a new trial.
Dr. Nathan's initial deposition indicated that while rheumatoid arthritis posed risks, he could not identify it as a major cause of Tenbarge's carpal tunnel syndrome (CTS). However, at trial, he asserted that rheumatoid arthritis was the primary cause of Tenbarge's CTS, leading to a significant variance in his testimony. The district court dismissed Tenbarge's objections, noting that discrepancies could be grounds for impeachment during cross-examination, and denied Tenbarge's request to depose Dr. Nathan further during a break. Tenbarge argued that the change in Dr. Nathan's testimony prejudiced him and claimed the court abused its discretion by not allowing an additional deposition. Ames countered that Dr. Nathan's characterization of rheumatoid arthritis as a risk factor during his deposition informed Tenbarge that this would be a focus at trial.
Per Federal Rule of Civil Procedure 26(e), parties must update expert testimony to reflect any changes. The court may impose sanctions for noncompliance, which can include exclusion of testimony or granting a new trial. The duty to supplement applies to any modifications in deposition testimony. The court emphasized the importance of discovery to prevent surprise and ensure fair trials. Ames's failure to update Tenbarge regarding Dr. Nathan's revised testimony hindered Tenbarge's ability to effectively cross-examine him or introduce counter-expert testimony, which was critical given the significance of causation in the case. Consequently, this lack of opportunity resulted in fundamental unfairness, prompting the necessity for a new trial.
The district court also ruled in favor of Ames on Tenbarge's strict liability and negligent failure to warn claims, citing insufficient evidence regarding the Bazooka’s defect, the necessary warnings, and Tenbarge's likelihood to heed such warnings. In reviewing the judgment as a matter of law, the court assumes the truth of the evidence by the nonmoving party and only removes the issue from the jury if all evidence supports the moving party's case without reasonable inferences favoring the nonmoving party. As this case involves diversity, state law questions are reviewed de novo.
In Missouri, a strict liability failure to warn claim requires five elements: 1) the defendant sold the product in business; 2) the product was unreasonably dangerous when used as intended and without knowledge of its characteristics at the time of sale; 3) the defendant failed to provide an adequate warning of the danger; 4) the product was used in a reasonably anticipated manner; and 5) the plaintiff suffered damages directly due to the lack of an adequate warning. In the case at hand, Ames sold the Bazooka, and Tenbarge used it as intended. Evidence presented by Tenbarge suggested that the Bazooka posed a risk of repetitive trauma injury. Notably, Tenbarge did not receive any warnings about the Bazooka during job training, and no warnings or literature regarding its proper use or risks were included with shipments to his employer from 1984 to 1995.
The key issue revolves around causation—whether Tenbarge demonstrated that the Bazooka caused his injuries and that warnings would have influenced his behavior. Testimony from Tenbarge's physician indicated that the Bazooka caused his carpal tunnel syndrome (CTS), which supports the causation claim. Missouri law provides a rebuttable presumption that adequate warnings would have been heeded if no warning was given, contingent on whether there is a legitimate question of the plaintiff's prior knowledge of the danger. Since Tenbarge had no prior knowledge of the risks associated with the Bazooka, he is entitled to this presumption.
Ames argued that Tenbarge would not have heeded any warnings, citing his return to work and use of the Bazooka after surgeries for CTS, despite being informed that the tool caused his condition. However, the court found that this behavior does not conclusively demonstrate disregard for health risks, as he returned to work following his doctor's instructions. Therefore, Ames is not entitled to judgment as a matter of law based on this argument.
Tenbarge argues that the district court erred by not instructing the jury on his claim of negligent failure to warn, which requires evidence of five elements: 1) Ames designed the Bazooka; 2) Ames was aware or should have been aware of the Bazooka’s unreasonable danger; 3) Ames should not have assumed users would recognize the danger; 4) Ames failed to exercise ordinary care in warning Tenbarge; and 5) this failure caused the injury. Additionally, the product must malfunction. It is established that Ames designed the Bazooka and did not provide warnings. Testimony from Ames's president indicated awareness of the repetitive motions required to use the Bazooka, suggesting ergonomic risks and a defective condition. The risk of developing Carpal Tunnel Syndrome (CTS) was not obvious enough for Ames to assume users understood the danger. Tenbarge also presented sufficient evidence for causation in relation to his strict liability claim. Therefore, the district court should have allowed the negligent failure to warn claim to proceed to the jury. Regarding the limitation on cross-examination of Zdravecky, the court found no clear abuse of discretion. Consequently, the judgment is reversed, and the case is remanded for a new trial.
