### The HONORABLE JOHN F. NANGLE, Senior United States * 

### District Judge for the Eastern District of Missouri, sitting by designation. The HONORABLE GEORGE H. HOWARD, Jr., United States 1 

### District Judge for the Eastern District of Arkansas. ____________________ No. 95-2893

____________________ Diane Buchanna, * *

Appellee, * Appeal from the United * States District Court v. * for the Eastern * District of Arkansas. Diehl Machine, Inc., * *

Appellant. *

____________________ Submitted: April 12, 1996 Filed: October 15, 1996

____________________ Before BEAM, Circuit Judge, MURPHY, Circuit Judge, and NANGLE, Senio r District Judge. *

____________________ NANGLE, Senior District Judge. The appellant-defendant appeals from a judgment of $350,000.00 entere d against it on a jury verdict. Appellant contend s that the judgment should be r eversed because the trial court erred in denying its motion fo r 1 judgment as a matter of law, the trial court erred when it allowed th e introduction of certa in industry standards into evidence at trial and the trial court erred by creating an appearance of partiality for th e plaintiff. We affirm.

### -2- I.
Diane Buchanna was a saw operator for Bassett Wood Products. In 1992 , Buchanna had been a saw operator for 18 years an d had worked with the same saw for approximately 12 years. The saw she worked with was a Model SL52 industrial straight line ripsaw manufactured by appellant Diehl in 1968. The saw has a 15 horsepower motor and a 14 inch blade and is used to cut a board in half lengt h-wise. All of the blade of the saw, except the top three inches, was enc losed by a metal guard called a sawpit. In addition to guarding the blade, the sawpit served as a sa wdust receptacle. A metal door accessed the saw pit and the blade was 12 inches from the door. When the door is opened, or the power is turned off, the motor shuts down but it takes four to five minutes for the blade to c oast to a stop. A central
vacuum system, not provided by the manufacturer, was used to remove sawdus t fro mseveral machines including the ripsaw. After its manufacture, bu t several years before the incident occurred in this case, Diehl provided a number of warning labels that were affixed to the saw.

On December 14, 1992, Buchanna returned fro m a work break and decided to clean the sawdust out of the sawpit. As she had been instructed by her supervisor, she turned off the saw and then used a piece of wood to stop the bla de so that she did not have to wait for it to coast to a stop

. Thinking that the bla de had stopped, she reached into the sawpit with her left hand t o clean out the sawdust. She came into contact with th e spinning blade and injured her hand. Her small finger had to be amputated and he r hand reconstructed. After plaintiff's injury, her employe r insta lled a T bar outside the sawpit door so that the door could not b e opened if the blade, and the T bar, were spinning.
On January 14, 1994, plaintiff filed this diversity products liabilit y action against Diehl alleging theories of strict

### -3-

liabili ty and negligence. The case was tried to a jury for three days

. At trial, Buchanna's expert witness, a failure a nalyst, testified that the saw was inherently da ngerous, and therefore defective, because the sawpit door could be opened while the blade was spinnin g, because the saw clogged up with debris on a r egular basis, and because the lighting at the sawpit door was inadequate for a person to see if the blade was still spinning. Duri ng the cross-examination of Buchanna, defense counsel attempted t o impeach her with deposition testimony concerning the use of both her hands upon her return to wo rk after the accident. The court allowed Buchanna's
co unsel to voir dire her in front of the jury, and followed up wit h questio ns of its own, to clarify plaintiff's testimony on this point

. During Diehl's case-in-chief, Diehl's president testified that the saw me t all applicable industry standards and that the use of a piece of wood to stop the blade was safe. Plaintiff, over defendant's objection, introduce d American National Standards Institute ("ANSI") standards, approved after the manufacture of th e saw, to impeach the president's testimony. At the conclusion of the trial, the jury returned a gen eral verdict for plaintiff for $350,000.00. Diehl moved for judgment as a matter of law, both at the conclusion of Buchanna's case and at the close of evidence. The cour t denied the motion and this appeal was taken.

II.

A denial of a motion for judgment as a matter of law is reviewed de
novo applying the same standard as the trial court. Kaplon v. Howmedica, Inc. , 83 F.3d 263, 266 (8th Cir. 1996). Judgment entered on a jury verdic t should be affirmed, if viewing the evidence in t he light most favorable to the appellee, reasonable persons could differ as to the proper conclusion. Rade maker v. State of Nebraska , 906 F.2d 1309, 1311 (8th Cir. 1990)

. Ark ansas law applies in this diversity action and its interpretation i s reviewed de novo. Kaplon , 83 F.3d at 266.

### -4-

Di ehl asserts that judgment as a matter of law is appropriate o n Buchanna's strict liability claim because she failed to present substantia l evidence that the saw was defective rendering it unreasonably dangerous. Under Arkansas law, a manufacturer is subject to strict liability if the product is supplied in a defective condition whi ch renders it unreasonably dangerous and that defective condition was the proximate cause of the harm

. Ark. Code Ann. § 4-86-102(a)(1987). Unreasonably dangerous is defined by statute in Arkansas: "Unreasonablydangerous" means that a product is dangerous to an extent beyond that which would be contemplated by th e ordinary and reasonable . . . user who. . . . uses the product, assuming the ordinary kn owledge of the community or of similar

. . . u sers . . . as to its characteristics, propensities , risks, dangers, and proper and improper uses, as well as an y special knowledge posses sed by the particular . . . user . . . or which he or she was required to possess.
Ark

. Code Ann. § 16-116-102 (1987). We find that Buchanna presente d substantial evidence that the saw was defective and unreasonably dangerous

. Buchanna's evidence that the saw was defective rendering i t unreasonably dangerous was primarily supplied by Buchanna's expert, Robert Evans. Evans testified that the saw was inherently dangerous, an d therefore defective, mainly because the sawpit door could be opened while the blade was spinnin g. He also criticized the fact that the saw clogged up with debris on a regular basis and that the l ighting at the sawpit door was inadequate for a person to see if the blade was still spinning. Diehl contends that Evans' opinions are not substantia l evidence because he "was completely ignorant of the field in which he testified and thus had n o basis for his claims". Appellant's brief at 16-17.
Under Arkansas law, "[a] properly qualified expert's opinio n constitutes substantial evidence unless it is shown that the

### -5-

expert's opinion is w ithout reasonable basis". Ford Motor Co. v. Massey , 855 S.W .2d 897, 899 (Ark. 1993). Diehl cannot argue that Evans was no t properly qualified because Diehl did not object to the approval of Evans

as an expert by the district court. Trial Transcript at 157. Moreover, there was a reasonable basis for Evans' opinions . Evans testified that he relied on his knowled ge, education and background in forming his opinion. Id

. at 129. Evans further testified that in forming his opinion, he relie d
on the operating and maintenance manuals for the machine, the deposition testimony of Buchanna and Diehl's plant manager, photographs of the saw, industry standards and regulations, and drawings of the machine. Id . at 129-30. Diehl had an opportunity to cross-examine Evans to try to sho w that his opinion had a questionable basis. Such an opportunity was al l that was required andthe jury was entitled to credit Evans' testimony if it so chose. See Massey , 855 S.W.2d at 899, 900 (stating that if crossexamination shows expert testimony to have weak or questionable basis that goes to weight and credibility of testimony).

Buchanna also contends that two subsequent remedial measures -Diehl's providing of warning labels after manufacture and Bassett's installation of t he mechanical interlock device (the T bar) - provide substantia l evidence to support the jury's verdict. Federal Rule of Evidence 407 does not re quire the exclusion of subsequent remedial measures in stric t liability cases. See Lockley v. Deere & Co. , 933 F.2d 1378, 1386 (8th Cir. 1991)(holding that evidence of subsequent remedial measure in support of strict liability claim was not precluded by Rule 407). Moreover, thes e subsequent remedial measures were relevant to sh ow that a different design
or war ning would have prevented the harm and that it was feasible t o include this design or warning before the product was sold. See Robbins

v. Farmers Union Grain Terminal Association , 552 F.2d 788, 794, 794 n. 5 (8th Cir. 1977). Thus, these measures also cons titute evidence supporting the jury's verdict as to the strict liability claim.

### Although Buchanna alleged both negligent design and 2 

### negligent failure to warn claims, the negligent design claim appears to have been the primary claim at trial and is the negligence claim addressed on appeal by the parties.
-6- In addition to i ts criticism of Evans' opinions, Diehl contends that there was not substantial evidence that the saw was defective an d unreasonablydangerous because Buchanna had worked with the saw for 1 2 years, had read the safety instructions, was aware of the warning labels
on the saw, and knew not to stick her hand in the sawpit door until th e blade had stopped spinning. Both Buchanna and Diehl agree that, unde r Arkansas law, the open and obvious danger rule is not a bar to recovery fo r
a strict liability claim. See Lockley , 933 F.2d at 1383. As it wa s entitled to do under the law, the jury heard the evidence on this issue an d found for Buchanna regardless of any open or obvious danger.

Diehl further contends that Buchanna was required to prove that the machine contained a danger other than that danger posed by all ripsaws

. Diehl relies on Frenc h v. Grove Manufacturing Co. , 656 F.2d 295 (8th Cir. 1981), fo r this proposition. In French , the Court held that a jur y instru ction that required plaintiff to prove that the product "contain s
some danger other than those all cranes pose, which danger was not an d would not reasonably be appreciated by an ordinarily prudent person" was not exceedingly clear but was not in error. Id

. at 299. This holding does not mean that Arkansas plaintiffs in strict liability cases are required to show a difference between the alleged defective product and all other simi lar products in every case. Rather, under the Arkansas Product s Liability Act, it is evidence that may be consid ered by the trier of fact. Ark. Code Ann. § 16-116-104(a)(2)(1987).

Diehl also asserts that its motion for judgment as a matter of la w should have been granted because Buchanna failed to produce substantia l evide nce that Diehl was negligent in its design of the saw. The Cour t 2 disagrees. In Arkansas, an inference of negligence

### -7-

arises when a product is shown to be unreasonably dangerous. Internationa l Harvester Co. v. Land , 354 S.W.2d 13, 18 (Ark. 1 962). Contrary to Diehl's argument, Buchanna showed that Diehl owed her a duty of care by showin g their rela tionship as manufacturer and user of the saw. As discusse d above, Evans' expert testimony supports the jury 's finding of unreasonable dang erousness. In addition, although subsequent remedial measures ar e generally excluded by Rule 407 in negligence cla ims (as the warning labels supplied by Diehl after manufacture would be her e), Bassett's installation of the mechanical interlock device would also support the jury's finding of negligenc e in this case. There is an exception to Rule 407 fo r subsequ ent remedial measures undertaken by third parties "because th e policy goal of encour aging remediation would not necessarily be furthered by exclusion of such evidence". O'Dell v. Hercules, Inc. , 904 F.2d 1194, 1204 (8th Cir. 1990); see also 2 Jack B. Weinstein & Margaret A. Berger, Weinstein's Evidence ¶ 407[01] at 407-11 (1994)("Because the controlling ground for excluding evidence has been the promotion of the policy o f encouraging people to take safety precautions, remedial measures carried out by persons not party to the suit are not covered.")(footnotes omitted)

.

D iehl's argument that other evidence, including compliance wit h applica ble industry standards in place at the time of manufacture an d evidence that the saw was as safe as other saws manufactured in 1968, show s that j udgment as a matter of law should have been granted is no t persuasive. Rather, such evidence merely shows that the jury had competin g evidence from which to choose. See Ark. Code Ann. § 16-116-105(a) an d 16-116-104(a)(1987). A reasonable jury could have come to the conclusion that Diehl was negligent in its design of the saw. Therefore, the trial court d id not err in denying Diehl's motion for judgment as a matter o f law.

### -8- III.
Diehl's second argument on appeal is that the trial court erred i n allowing Buchanna to introduce industry standards promulgated after the sa w was manufactured. A district court's admission of evidence over objection is reviewed for an abuse of discretion. United States v. Whitetail , 956 F.2d 857, 861 (8th Ci r. 1992). As noted above, Diehl's president, Robert Rozman, w ho was also chairman of the ANSI committee on wood workin g machines, was called to testify in Diehl's case-in-chief. He was certifie d
as an exp ert in standards and state of the art for the wood industry

. Trial Transcript at 361. Mr. Rozman testified that the saw in question me t all applicable industry standards in 1968. Id

. at 362. He also testified that stopping the machine with a piece of wood w as not an unsafe practice. Id . at 388.

Bucha nna contends that she introduced parts of the subsequentl y approv ed ANSI standards to impeach Rozman's credibility in two ways

. First, Buchanna contends that in response to Rozman's criticism of th e mechan ical interlock device, Buchanna asked if anything could have bee n added to the machine to make it safer. Id . at 386. When Rozman responded that devices to electronically stop the motor were available in the 1980's , Buchan na introduced an ANSI standard, approved in 1978, that mentione d electronic brakes. Id . at 389. Second, Buchanna had Rozman read part of
a 197 8 standard applying to radial arm saws which stated that stoppin g blade rotation with a piece of wood should be prohibited. Id

.
Diehl contends t hat admission of the irrelevant subsequent standards was unfairly prejudic ial because it implied that Diehl failed to meet the industry standard of applying a blade brake and the error was compounded by the fact that the standard applied to radial arm saws rather tha n industrial straight line ripsaws. Diehl relies on White v. Clark Equipmen t Co. , 553 S.W.2d 280 (Ark.

### -9-

1977), to contend that the evidence was irrelevant and should not have bee n admitted. In White , a man was fatally injured when a trailer moved away from a warehouse dock as he was backing a forklift out of the trailer. Th e forklift he was driving fell backwards on him. The trailer manufacturer
was one of the defendants that the wife of the deceased sued in th e wrongful death action. The trial court refused to admit a United States Department of Transpo rtation regulation promulgated after the manufacture of the trailer and after the accident occurred. On appeal, the court held that the evidence had no relevance to the question of whether th e manufacturer had exer cised ordinary care in its design and manufacture of the trailer. Id . at 281. The court further hel d that the probative value of the subsequent regulation in impeaching the manufacturer's exper t witness was outweighed by the danger of unfair prejudice. Id

.

I n this case, the relevance and the prejudicial effect of thi s evidence are close questions, especially given the question of whether thi s standard applied to i ndustrial ripsaws or only to radial arm saws. Diehl had an opportunity to address these issues on Mr. Rozman's re-direc t examination, however. See Trial Transcript at 396. Therefore, we cannot say that the trial court abused its discretion in admitting the evidence.

Even if admission of this evidence were an abuse of discretion, w e find that it was harmless error pursuant to Federal Rule of Civil Procedur e 61 because, viewed in context of the entire trial, its admission did not aff ect Diehl's substantial rights. Moreover, as discussed above , subs tantial evidence other than the subsequent standards supported th e jur y's verdict in this case. See Brown v. LaCreek Electric Association , Inc. , 939 F.2d 623, 625 (8th Cir. 1991) (holding exclusion of evidence was harmless error because substantial evidence supp orted the jury's verdict).

IV.

### -10-

Diehl's third argument on appeal is that the trial court erred b y suggesti ng and allowing Buchanna's counsel to voir dire her on he r cross-examination and making clarifying comments of its own in the presenc e of the ju ry. Diehl contends that this conduct created an appearance o f partiality by the court toward the plaintiff. Because Diehl did not objec t to the court's actions at trial, the judgment may be reversed on thi s ground only if it is found to be plain error. Mitchell v. Kirk , 20 F.3d 936, 937 (8th Cir. 1994). Plain error is an error that "almost surel y affected the outcome of the case". Champagne v. United States , 40 F.3 d 946, 9 47 (8th Cir. 1994)(quoting Angelo v. Armstrong World Industries , Inc. , 11 F.3d 957, 961 (10th Cir. 1993)). Having reviewed the relevan t portion of the transc ript, we conclude that the trial court's actions did not affect the outcome of the case and, thus, did not constitute plai n
error.

V.

In sum, we conclude that the trial court did not err in denyin g Diehl's motion for judgment as a matter of law, did not err in admitting the subsequent industry standards and did not commit plain error b y creating an appearance of partiality toward the plaintiff. Accordingly, we affirm the judgment of the district court.
BEAM, Circuit Judge, dissenting.

Use of evidence of the modification of the saw by Diehl's customer, Bassett, the modification occurring at least twelve years after sale of th e saw and the commencem ent of its use, as proof of a design defect existing at the time of earlier sale, was prejudicial err or. Thus, I would reverse the case and remand the matter for a new trial.
As noted by the court, the saw was manufactured in 1968 and

### Only the Tenth Circuit has embraced the reasoning in 3 

### Robbins and then only partially. Nine other circuits have squarely rejected Robbins and exclude proof of subsequent remedial measures when offered as substantive evidence of a defect in a product. See Raymond v. Raymond Corp. , 938 F.2d 1518, 1522 (1st Cir. 1991); In re Joint E. Dist. and S. Dist. Asbestos Litig. v. Armstrong World Indus. , 995 F.2d 343, 345-46 (2d Cir. 1993); Cann v. Ford Motor Co. , 658 F.2d 54, 60 (2d Cir. 1981), cert. denied , 456 U.S. 9670 (1982); Kelly v. Crown Equip. Co. , 970 F.2d 1273, 1275 (3d Cir. 1992); Werner v. Upjohn Co. , 628 F.2d 848, 856-58 (4th Cir. 1980), cert. denied , 449 U.S. 1080 (1981); Grenada Steel Indus. v. Alabama Oxygen Co. , 695 F.2d 883, 886-89 (5th Cir. 1983); Bauman v. Volkswagenwerk Aktiengesellschaft , 621 F.2d 230, 232-33 (6th Cir. 1980); Flaminio v. Honda Motor Co. , 733 F.2d 463, 468-70 (7th Cir. 1984); Gauthier v. AMF, Inc. , 788 F.2d 634, 636-37, modified, 805 F.2d 337 (9th Cir. 1986); Wood v. Morbark Indus. , 70 F.3d 1201, 1206-07 (11th Cir. 1995). Further, the Judicial Conference of the United States has now recommended to the Supreme Court that Rule 407 be amended to specifically extend the exclusionary effect of the Rule to proof of "a defect in a product, a defect in a product's design, or a need for a warning or instruction," thus, directly overruling Robbins when and if the change is ultimately adopted by the Court and Congress. Report of the Judicial Conference Cormnittee on Rules of Practice and Procedure, September 1996.
-11- was sold to Buchanna's employer at least twelve years (and probably many addition al years) prior to 1992, the year of the accident. After th e accident, and without Diehl's knowledge, Buchanna's employer extended a shaft through the cle an-out door and created a whirling T-bar arrangement designed to prohibit opening the door while the saw blade was in motion.
This, Buchanna contends and the court agrees, was a "subsequen t remedial measure" admissible as substantive evidence of a defect in the sa w under this circuit's analysis of Federal Rule of Evidence 407. See Robbin s
v. Farmers Union Grain Terminal Ass'n , 552 F.2d 788, 793-95 (8th Cir

. 1977). F ederal Rule of Evidence 407 is, however, in no way applicable to

3 a modification made by a customer of the manufac turer, especially when the alteration is made many years after the sale of the product and without th e manufacturer's knowle dge. The admissibility, or not, of this evidence is governed by Federal Rules of Evidence 402 and

### -12-

403. The question is : are the facts relevant and, if relevant, are they
or are they not unfairly prejudicial? In this case, evidence of this poorl y concei ved and dangerous customer modification was barely, if at all , relevant and clearly inadmissible according to any reasonable test under Rule 403.

Rule 407 is a rule of exclusion and not inclusion and it so states. The Rule clearly deals with the conduct of a tortfeasor or defendan t manufacturer or selle r, not a third person not a party to the litigation. Indeed, as the advisory note to the Rule states, the policy underlying the Rule is to promote measures that will lead to safer products even when a defendant believes he or she is not guilty of culpable conduct. As noted in Weinstein's Evidence: [b]ecause the controlling ground for excluding [subsequen t rem edial] evidence has been the promotion of the policy o f enc ouraging people to take safety precautions, remedia l measures carried out by persons not party to the suit are not covered [by Rule 407]. Since the person taking the remedia l measures is not affectedby having the evidence admitted as an admission of fault, the admissibility of the eviden ce should be governed bythe general r elevancy requirements of Rules 401-403 rather than Rule 407.
2 Jack B. Weinstein, et al., Weinstein's Evidence § 407[01] at 407-1 1 (1992).

The court cites O'Dell v. Hercules. Inc. , 904 F.2d 1194, 1204 (8th Cir. 1990) for the proposition that subsequent measures by a third party are an exception to t he exclusionary force of Rule 407. O'Dell , if not in
error on the point, is wholly inapposite to this case. First, since the evi dence at issue in O'Dell was excluded and not admitted under a n exception to Rule 407, the statement from O'Dell is pure obiter dictum

. Id. at 1203. Second, the statement, citing as its source Farner v. Paccar , Inc. , 562 F.2d 518 (8th Cir. 1977), is an incorrect analysis of the holdin g in Farner . While the Farnar court parrots (and overstates) Robbins , the essential holding was that Rule 407 was inapplic able to a determination of

### -13-

the admissibility of this type of evidence. The court correctly held that the third-party modification "was not barred by Fed. R. Evid. 407." Farner 562 F.2d a t 528. But, as pointed out in Weinstein , the evidence wa s admissib le because it was relevant to one or more of the issues in th e litigation not becaus e Farner was a products liability case unaffected by exclusions contained in Rule 407. Id. ("We . . . conclude that the evidenc e of

. . . [third party's] subsequent installation of safety chains, wa s relevant to the issue of [Paccar's] defective design.") Id . Relevanc e under Rul e 402 (not admissibility under Rule 407) is the question to b e considered in this appeal.

Thus, the post-1992 modification of the saw by Bassett was not made admissible by Rule 407. Evidence of Bassett's a lteration should have been admissible only if it provided relevant proof of a defect in Diehl's 1968 design. It did not and the evidence should have been excluded

. Accordingly, I dissent.

A true copy.

Attest:

CLERK U.S. COURT OF APPEALS EIGHTH CIRCUIT.