No. 89-024 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1989 

------- - 

ANDREW KRUEGER and SUZANNE KRUEGER, 

Plaintiffs and Respondents, 

GENERAL MOTORS CORPORATION, 

a Delaware Corporation, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Eighth Judicial District Court, 

In and for the County of Cascade, 

The Honorable Thomas M. McKittrick, Judge Presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Curtis G. Thompson; Jardine, Stephenson, Blewett & Weaver, 

Great Falls, Montana 

Richard A. Bowman, Argued, Kent B. Hanson and Kim M. 

Schmid; Bowman & Brooke, Minneapolis, Minnesota 

For Respondent: 

I3ennis Patrick Conner, Argued, Great Falls, Montana 

0 *grik B. Thueson, Helena, Montana 

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Justice R. C. McDonough delivered the Opinion of the Court. 

This is an appeal from a jury verdict and judgment of 

the Eighth ~udicial District, Cascade County, awarding general and special compensatory damages in a products liability 

case. Defendant General Motors Corporation [GM] appeals an 

award of the District Court of the ~ighth Judicial District, 

Cascade County awarding the plaintiff Andrew Krueger 

(Krueger) damages in the sum of $1,293,430.00. The District 

Court found that GM's failure to warn regarding a defectively 

designed full-time four wheel drive transfer case was the 

proximate cause of plaintiff's injuries. We affirm. 

GM raises the following issues and specifications of 

error on appeal: 

1) Did the District Court err in excluding evidence of 

videotaped tests conducted by the defendant's expert witness 

regarding the response of various types of transfer cases 

under conditions similar to the accident in question? 

2) Did the District Court err in admitting evidence of 

other incidents involving the sudden rolling of vehicles 

equipped with the New Process Model 203 transfer case? 

3) Did the District Court err in excluding evidence of 

plaintiff's prior drug convictions and alleged habitual drug 

use on the issue of plaintiff's life expectancy? 

4) Did the District Court err in instructing the jury 

regarding the affirmative defense of assumption of the risk 

in products liability litigation? 

5 Is there substantial evidence in the record to 

support the District Court's finding that GM's failure to 

warn was a proximate cause of Andrew Krueger's injuries? 

6) Did the District Court err in admitting into evidence hearsay testimony and allowing plaintiff's arguments 

alleged by defendant to be based on hearsay statements? 
7) Did the District Court err in overruling defendants 

objections to plaintiff's closing arguments requesting the 

jury to "send a message" to GM when punitive damages were not. 

an issue in the case? 

On February 17, 1983 Krueger experienced problems with 

the universal joint on the front drive shaft of a 1976 

General Motors Chevrolet full-time four wheel drive pickup 

that he had borrowed from a friend, He drove the pickup t.o 

the Pit Stop, an auto repair shop in Great Falls owned by a 

friend, where he planned to remove the shaft and leave it for 

repairs. 

Krueger parked the truck on the sloping driveway outside 

the Pit Stop (approximately Sf0) and with the vehicle engaged 

in park proceeded to remove the front drive shaft. When 

Krueger disconnected the shaft the pickup began to roll down 

the slope of the driveway. The back of Krueger's head got 

caught in the front differential and was pulled forward on to 

his chest as the truck rolled over him. The accident broke 

Krueger's neck and severely damaged his spinal cord, 

rendering Krueger a quadriplegic. 

Prior to 1973, all GM four wheel drive vehicles were 

equipped with conventional transfer cases; with such transfer 

cases the rear drive shaft remains locked when the vehicle is 

in "park." This is necessary because with a conventional 

transfer case disengaged and the wheel hubs unlocked, as they 

normally would be on dry pavement, the vehicle is essentially 

a two wheel drive vehicle and would roll unless the rear 

drive shaft was locked. 

The pickup involved in this accident was equipped with a 

New Process Model 203 full-time four wheel drive transfer 

case, used in GM models with automatic transmissions from the 

years 1973 to 1979. On these vehicles, the "park" gear locks 

the power output shaft leading from the engine to the 
transfer case, to which the front and rear drive shafts are 

then connected. 

Because of cornering problems where the outer wheel must 

rotate faster than the wheels on the inside of the corner, a 

differential is needed to compensate for these two different 

rotation speeds. A differential makes this compensation by 

applying the engine's driving force through the path of least 

resistance. In a full-time four wheel drive vehicle, a third 

inter-axial differential, located in the transfer case, is 

needed to compensate for the difference in cornering speeds 

between the front and rear wheels. When either of the drive 

shafts is disconnected on a full-time four wheel drive, this 

inter-axial differential applies the locking force of the 

"park" gear through the path of least resistance to the drive 

shaft that is no longer connected, this allows all the 

vehicle's wheels, including those on the still connected axle 

and drive shaft, to roll freely. Thus, a vehicle equipped 

with a New Process Model 203 transfer case and engaged in 

"park" will begin to roll when a single drive shaft is 

removed or a single wheel is jacked off the ground. The only 

way to prevent this motion is to first engage the vehicle in 

"park" and then in four wheel drive "lock." Engaging "lock" 

on a full-time four wheel drive is similar to engaging the 

transfer case and locking the hubs on a conventional four 

wheel drive. It locks all wheels so they will turn at the 

same speed regardless of cornering distances, eliminatinq the 

function of the differential, and thus no one portion of the 

drive train can become a path of least resistance. 

As one can see, there is a great difference in the 

effect of putting a full-time versus a conventional four 

wheel drive pickup in park when the front drive shaft is 

disconnected. In the conventional models, "park" locked the 

rear drive shaft and that is all that had to be done. Rut in 
a vehicle equipped with the New Process Model 203 one had to 

place the transmission in "park" and also engage the transfer 

case in "lock," locking all four wheels and insuring that the 

vehicle was completely immobilized. 

During his service in the military, Krueger gained 

considerable experience and knowledge regarding the operation 

and repair of conventional four wheel drive vehicles. 

Krueger had also been employed as a drive line specialist for 

Glacier Motors in Cut Bank, Montana. During that time he 

built and repaired approximately 500 drive lines. Krueger's 

knowledge or lack thereof of the dangers in removing the 

front drive shaft on a full-time four wheel drive equipped 

with the New Process Model 203 and whether GM provided a 

reasonably safe transfer case design and/or a warning sufficient to avoid strict products liability were focal issues at 

trial. 

During trial, plaintiff advocated an alternative transfer case design, the Borg Warner Quadra Trac (used in Jeeps 

at the time), asserting that it would have prevented the 

accident. The Quadra Trac employs a limited-slip friction 

clutch in the transfer case to retain the traction that would 

be lost when all the power is transferred via the 

differential to the wheel experiencing the least resistance. 

The friction clutch requires an individual wheel or axle to 

experience a threshold amount of torque for the clutch to 

slip and allow the differential to work freely. Until the 

threshold level of torque is reached, such as when the inside 

wheel experiences resistance when cornering, both wheels will 

revolve at the same speed. Thus, when a single wheel is the 

only one powered, such as when one wheel spins out on ice or 

snow, the friction clutch provides a limited traction 

recovery to the other wheel until the spinning wheel regains 

its traction. A vehicle equipped with the New Process 203, 
on the other hand, would be unable to generate any traction 

and remain immobile. Friction clutches wear out quickly and 

are rarely maintained at the torque specifications level 

present when manufactured. 

Krueger argued that a properly maintained Borg Warner 

Quadra Trac transfer case would have prevented the accident 

because the friction clutch in the transfer case differential 

would have engaged the park gear to the rear drive shaft once 

the vehicle began to roll. Plaintiff contended that this 

would have either held the vehicle on the slope or, if the 

clutch was worn, slowed its rolling enough to provide Krueger 

enough time to get clear of the vehicle. GM argued that even 

a Borg Warner Quadra Trac transfer case at specifications 

would not have held the vehicle on the accident slope. 

I. 

We now address the first issue raised by GM: Did the 

District Court err in excluding evidence of videotaped tests 

conducted by the defendant's expert witness regarding the 

response of various types of transfer cases under conditions 

similar to the accident in question? In its brief, GM argues 

that copies of the videotapes were given to the plaintiff 

prior to trial, and thus do not raise a discovery compliance 

issue. At the deposition of defendant's expert, Richard 

Keefer, approximately two weeks prior to trial, GM assured 

Krueger's attorney, Mr. Dennis Conner, that any such 

videotapes would be disclosed prior to trial: 

Q (BY MR. CONNER) Well, what pending 

assignments do you have? 

A Pending assignments? 

Q Right. 

A I don't believe I have any specific 

pending assignments. . . . if refinements to the 

preliminary work we've done on evaluating various 

kinds of vehicles, full-time and/or part time and. 
the rollaway situation, are requested, why, I 

expect we'll do it. And if it's requested that 

they are reported in some way, why, we certainly 

have the capability to do that. 

MR. CONNER: Well, if he's going to do any 

further work prior to the time of trial, I'd like 

such documents or records that are generated which 

are discoverable to he certainly produced prior to 

trial, as well as having the opportunity to further 

depose him--- 

MR. HANSON: Well, if you're agreeing, 

then--- 

MR. CONNER: ---on that subject. 

MR. HANSON: ---when you have your witnesses 

do all the work they haven't yet done that you're 

going to reproduce them for depositions, fine. 

Tamny hadn't done jack squat when he got under 

oath. And we're not going to agree to any kind of 

conditions on our people, redeposing them, that 

isn't going to apply to you, certainly. 

-- We will certainly -- show you whatever exhibits 

are generated, --- and we will inform you of anything 

you're entitled -- to know about the basisor grounds 

- for his opinions. Whether I'm going tobring Mr. -- Keefer back and have you depose him again, I highly 

doubt it, just as I highly doubt that you're going 

to give me a meaningful opportunity to learn what 

Tamny's done since the time of his deposition. 

Keefer Depositon, pp. 123-125. (~mphasis added.) Mr. ~eefer 

was deposed on July 12, 1988. Prior to the deposition he 

conducted tests of various four wheel drive vehicles to 

determine if they would roll on a slope equal to the accident 

slope when the driveline was removed. During these tests he 

determined that a 1977 Jeep equipped with a Rorg Warner 

Quadra Trac transfer case would not roll on the test slope. 

Keefer Deposition, p. 139. On July 21 and 22 he conducted 

further tests, recording them on videotape. GM alleges that 

this new evidence would demonstrate that virtually any vehicle, including a Jeep with Quadra Trac, would respond as the 

accident vehicle did under the circumstances. The trial 

began on July 25, 1988, three days after the final testing. 
The existence and content of the videotapes was not disclosed 

to plaintiff until mid-trial, after the plaintiff had rested 

on August 3, 1988. 

In this regard, the facts of this case are similar to 

those in Workman v. McIntyre (1980), 190 Mont. 5, 617 P.2d 

1281, where we held that admission of an undisclosed film 

exhibit was an abuse of discretion. The film was not made 

available to the plaintiff after assurances by the State that 

it would be. We held that: 

These tactics are contrary to the letter and spirit 

of all pretrial discovery which is to prevent 

surprise, to simplify the issues, and to permit 

counsel to prepare their case for trial on the 

basis of the pretrial order. 

Workman, 617 P.2d at 1285. It is clear from the record in 

this case that GM assured the plaintiff that any further 

exhibits generated by their expert would be disclosed prior 

to trial and that GM failed to do so. The District Court did 

not abuse its discretion in excluding the videotape evidence. 

GM's expert was also precluded from testifying regarding 

the tests conducted in the excluded videotapes, and regarding 

current model full-time four wheel drive designs. The trial 

judge ruled that: 

Well that's part of the experiment and that's 

subsequent to the close of discovery. And its also 

a possibility of interjecting subsequent designs. 

So our court is clear on that that those are not 

permissible. 

Transcript, August 8, 1988, p. 1996. 

We agree. In a strict liability action under a design 

defect theory, the question is whether the design specifications were partly or totally defective. Rix v. General 

Motors Corp (1986), 222 Mont. 318, 330, 723 P.2d 195, 202. 

Design specifications are "judged not by the condition of the 
product, but the state of scientific and technological 

knowledge available to the designer ----- at the time the product 

- was placed -- on the market." Kuiper v. Goodyear Tire & Rubber 

Co. (1983), 207 Mont. 37, 62, 673 P.2d 1208, 1221. (Emphasis 

added.) In - Rix, we set forth the following elements for 

instructional purposes in an alternative design products 

liability case: 

. . . (3) In determining whether an alternative 

design should have been used, the jury should 

balance so many of the following factors as it 

finds to - be pertinent ---- at the time of manufacture: 

( a) The reasonable probability that the 

product as originally designed would cause serious 

harm to the claimant. 

(b) Consideration of the reasonable probability of harm from the use of the original product as 

compared to the reasonable probability of harm from 

the use of the product with the alternative design. 

(c) The technological feasibility of an 

alternative design that would have prevented claimant's harm. 

- Rix, 723 P.2d at 201. (Emphasis added.) Thus, the only test 

evidence admissible in this case would be test evidence 

concerning other designs available at the time the New Process 203 transfer case was placed on the market, such as the 

Borg Warner Quadra Trac, or conventional transfer cases. The 

record indicates that all the evidence excluded by the District Court was either associated with the inadmissible 

videotape tests, or involved subsequent designs used in the 

a.utomobile industry, particularly the designs used in current 

model full-time four wheel drive passenger vehicles. We 

reiterate the rule as we did in Rix: 

. . . a design is defective if ---- at the time of 

manufacture an alternative designed product would 

have been safer than the original designed product 

and was both technologically feasible and a 
marketable reality. Again -- - the - time frame under 

scrutiny - is - the -.- time of manufacture - -- and not any 

other time. 

- Rix, 723 P.2d at 202. (Emphasis added.) The District Court 

did not abuse its discretion in excluding evidence concerning 

the late test results and evidence of d.esigns not pertinent 

to the time of manufacture. 

11. 

Regarding the second issue raised by GM, the test of 

admissibility for evidence of other accidents in a products 

liability case is "whether the circumstances surrounding the 

product involved in other accidents were substantially the 

same or similar to the accident at issue." Kuiper, 673 P.2d 

at 1219. The accidents need not he identical to be 

admissible. Runkle v. Burlington IJorthern (1980) , 188 Mont. 

286, 292, 613 P.2d 982, 986. 

Here, the other accidents all involved the New Process 

Model 203 transfer case and its inherent design characteristics which cause it to roll when a single wheel is jacked up 

or a single drive shaft removed. Although one incident 

involved a Chrysler vehicle, that vehicle was equipped with 

the same 203 transfer case used by GM. Also, the incident 

involving removal of the rear drive shaft demonstrates the 

same roll-away characteristics at issue in this case that 

distinguish the New Process 203 from a conventional transfer 

case or one equipped with a limited slip differential. 

The admission of evidence of other accidents in products 

liability litigation is entrusted to the discretion of the 

trial judge. Tacke v. Vermeer Mfg. Co. (1986), 220 Mont. I., 

9, 713 P.2d 527, 532. We do not see any abuse of discretion 

in this case. 
As its third issue GM argues that the District Court 

erred in excluding evidence of Krueger's alleged habitual 

drug use on the issues of plaintiff's life expectancy and 

assumption of the risk. Relevant evidence may be excluded if 

its probative value is substantially outweighed by the danger 

of unfair prejudice, confusion of the issues, or misleadinq 

the jury. Rule 403, M.R.Evid. Here, the evidence is 

speculative at best, and, if it bears any relevance at all to 

this case, the evidence is of such a highly prejudicial 

nature in comparison to its probative value that its 

admission could constitute error. 

Under Rule 403, the determination of admissibility is 

within the discretion of the trial judge and will not be 

disturbed unless there is manifest abuse of discretion. 

Zeke's Distributinq Co. v. Brown-Forman Corp. (Mont. 1989) , 

779 P.2d 908, 911, 46 St.Rep. 1678, 1681; Dahlin v. Holmquist 

(1988), 766 P.2d 239, 241, 45 St.Rep. 2127, 2129-2130. The 

exclusion of the drug evidence in this case was a sound 

exercise of discretion hy the trial judge. 

IV. 

Pertaining to issue IV, at trial, the District Court 

gave the following instruction, i11 addition to the pattern 

instruction (Instruction No. 23) , on the affirmative d-efense 

of assumption of the risk: 

The Defendant has the burden of proving that 

Andy Krueger assumed the risk of his injuries. To 

establish this defense, General Motors must prove: 

(1) That Andy Krueger actually knew before he was 

injured that the vehicle would roll if he dl 1 sconnected the front driveline; 

(2) That knowing this, Krueger voluntarily exposed 

himself to the danger, and. 
(3) That Krueger unreasonably exposed himself to 

that danger. 

If the Defendant fails to prove all three of 

the above, then Andy Krueger did not assume the 

risk of his injuries. 

Instruction No. 20. GM argues that the instruction erroneously requires that Krueger knew the truck would roll on him 

and render him a quadriplegic before he attempted to disconnect the front driveline, the absurd equivalent of requiring 

that he have a death wish. 

With regard to the affirmative defense of assumption of 

the risk in products liability, Montana has adopted the 

position of the Restatement of Torts 2d, 9 402A, Comment (n): 

Contributory negligence of the plaintiff is 

not a defense when such negligence consists merely 

in a failure to discover the defect in the product, or to guard against the possibility of its 

existence. On the other hand the form of contributory negligence which consists in voluntarily and 

unreasonably proceeding to encounter a known danger, and commonly passes under the name of assumption of risk, is a defense under this Section as in 

other cases of strict liability. If the user or 

consumer discovers the defect and is aware of the 

danger, and nevertheless proceeds unreasonably to 

make use of the product and is injured hy it, he is 

barred from recovery. 

Brown v. North Am. Mfg. Co. (1977), 176 Mont. 98, 110, 576 

P.2d 711, 719. Assumption of the risk is now apportioned in 

a manner similar to fault under a comparative negligence 

scheme. Zahrte v. Sturm, Ruger & Co., Inc. (19831, 203 Mont. 

90, 94, 661 P.2d 17, 19. 

The standard applied in evaluating the defense is a 

subjective one rather than the objective standard of the 

reasonahle man test: 
"The standard to be applied is a subjective one, of 

what the particular plaintiff sees, knows, 

understands and appreciates. In this it differs 

from the objective standard which is applied to 

contributory negligence. . . . If by reason of 

age I or lack of information, experience, 

intelligence, or judgment, the plaintiff does not 

understand the risk involved in a known situation, 

he will not be taken to assume the risk, although 

it may be found that his conduct is contributory 

negligence because it does not conform to the 

community standard of the reasonable man." 

Brown, 576 P.2d at 719, quoting Restatement of Torts 2d, $ 

496D, Comment (c) . In order for GM to assert the defense, 

Krueger must have had subjective or actual knowledge that the 

truck would roll. This does not require that he have 

knowledge of the severity of the injuries he would suffer. 

GM admitted that Krueger would have never attempted to 

complete the repairs in the manner he chose if he knew that 

the vehicle would begin to roll when he disconnected the 

drive shaft. 

GM asserts that Instruction 20 is tantamount to an 

abolition of the defense of assumption of the risk in products liability. We disagree. The instruction merely required that the plaintiff have actual knowledge of the danger 

and then specifically stated what actual knowledge of the 

danger entails under the facts of this case. It was obvious 

to the jury under these facts that Krueger lacked such knowledge. In other cases it may be equally obvious that a plaintiff has subjective knowledge of the actual danger posed by a 

defect. In such cases, a jury could then evaluate the extent 

to which that plaintiff assumed the risk of his injuries. 

It is reversible error to refuse to instruct on an 

important part of a party's theory of the case. Furthermore, a party has a right to have jury instructions which 
are adaptable to his theory of the case. Tacke, 713 P. 2d at 

534. Although we believe that Montana Pattern Instruction 

7.05, taken directly from Zahrte, would have been a 

sufficient, comprehendable and accurate statement of the law 

in this case, we find no error on the part of the trial judge 

in giving Instruction No. 20 as a complementary instruction 

under the facts of this case. 

v. 

We now turn to the issue of sufficiency of the evidence, 

(Issue V) , to support the District Court's denial of GM's 

motions for directed verdict and new trial. 

When reviewing a jury verdict, this Court's function is 

to determine if there is substantial credible evidence in the 

record supporting the jury ' s verdict. Gunning v. General 

Motors Corp. (Mont. 1989), 779 P.2d 64, 66, 46 St.Rep. 1546, 

1548, Weinberg v. Farmers State Bank of Worden (1988), 752 

P.2d 719, 721-722, 45 St.Rep. 391, 392. Where there is 

substantial evidence to support the jury's verdict the 

District Court's refusal to grant a new trial will not be 

disturbed. Brothers v. Town of Virginia City (1976), 171 

Mont. 352, 358, 558 P.2d 464, 467. When reviewing a denial of 

a motion for directed verdict, we concede as true all of 

plaintiff's evidence and give the plaintiff the benefit of 

all legitimate inferences. If the record at that point 

should contain substantial evidence sustaining the jury 

finding then the trial court's action in denying the motion 

for directed verdict and submitting the cause to the jury, 

and the jury verdict itself, must be sustained. Brothers, 

558 P.2d at 467. 

In the case at bar there is substantial credible evidence supporting the jury's verdict and the District Court's 

denial of GM's motions for directed verdict and new trial. 

This evidence supports the finding that GM's failure to warn 
concerning the inherent design characteristics of the New 

Process Model 203 transfer case---characteristics causing 

vehicles equipped with it to roll under circumstances that 

vehicles equipped with conventional transfer cases would 

not---was the proximate cause of Krueger's injuries. 

Krueger's testimony and the testimony of the other accident 

victims tended to prove the same thing: the accident victims 

all believed that a vehicle equipped with the New Process 

Model 203 transfer case would behave like a conventional four 

wheel drive when a driveline was removed or a wheel jacked 

up; they all testified that had they known otherwise they 

would never have attempted the repairs in the manner they 

did. Furthermore, evidence was presented regarding the Borg 

Warner Quadra Trac transfer case that enabled the jury to 

balance the transfer case design chosen by GM against the 

feasibility and marketability of alternative designs. 

A manufacturer may be required to provide a warning in 

relation to its product if it is to avoid a determination 

that the product is unreasonably dangerous. Restatement of 

Torts 2d $ 402A, Comment (j) at 353 (1965). The product is 

automatically defective if it is unreasonably dangerous, and 

a warning is required but not given. Rost v. C. F. & I. 

Steel Corp. (1980), 189 Mont. 485, 488, 616 P.2d 383, 385. 

It is the manufacturer's duty to warn inadequately informed 

users about the risk of danger involved with the use of a 

product. Streich v. Hilton-Davis (1984), 214 Mont. 44, 54, 

692 P.2d 440, 445. 

The only alleged warning given by GM is contained in a 

sticker that was located on the driver's sunvisor in the 

accident vehicle and all vehicles equipped with the New 

Process 203 transfer case. Plaintiff's Exhibit 199. This 

sticker merely consists of operating instructions for fulltime four wheel drive in the unlocked and locked positions of 
the transfer case, it does not warn of any of the dangers or 

differences from conventional transfer cases when repairs are 

attempted with the transfer case and interaxial differential 

unlocked. 

GM contends that because of Krueger's training in motor 

vehicle repair and the precautions associated with it, (such 

as using the parking brake, wheel chocks, and generally 

avoiding repairs on a slope), it is clear that any warning 

given "would have fallen on deaf ears." Rost, 616 P.2d at 

386-387. In this regard, GM argues that the jury was 

entitled to hear evidence regarding plaintiff's propensity 

toward carelessness in the face of information available to 

him, including evidence of plaintiff's alleged use of 

dangerous drugs. 

We have already discussed the admissibility of the 

alleged drug evidence and do not believe the subject merits 

further discussion. Furthermore, the "deaf ears" situation 

in Rost is distinguishable from the case at bar. In Rost, a 

warning by the manufacturer of elevator cables was excused 

because the owner of the premises where the plaintiff was 

injured had a duty to maintain and inspect the elevator and 

would have failed to do so regardless of a warning of the 

obvious fact that worn elevator cables pose a serious dan-- 

ger. In fact, the store owner in Rost had been involved in a 

prior accident in the same elevator when the cables broke. 

Here, there is no superseding cause excusing GM's failure to 

warn. Thus, the jury was entitled to find that GM's failure 

to warn was the proximate cause of Krueger's injuries. 

VI. 

We now come to issue VI concerning the admission of 

hearsay statements and arguments based on such statements. 

GM obiects to the admission of the hearsay testimony of an 

alleged GM master technician as given by Krueger's expert 
Simon Tamny. Mr. Tamny testified regarding a conversation 

that he had with the technician about a similar accident the 

technician had involving a 203 transfer case. 

An expert may base an opinion on facts or data perceived 

by or made known to him at or before the hearing. If of a 

type reasonably relied upon by experts in a particular field 

in forming opinions or inferences upon the subject, the facts 

or data need not be admissible into evidence. Rule 703, 

M.R.Evid. -- See e.g. Azure v. City of Billings (1979), 182 

Mont. 234, 255, 596 P.2d 460, 472, State v. Deshner (19711, 

158 Mont. 188, 193-194, 489 P.2d 1290, 1293-1294. At trial, 

plaintiff qualified Mr. Tamny as an expert in transfer case 

design. Field investigations of user experience is an 

appropriate method for such an expert to form opinions as to 

whether a particular transfer case design is an effective 

design or is dangerous. Mr Tamny synthesized the 

technician's accident with other incidents involving the New 

Process 203 in arriving at his opinion that the transfer case 

was defective and a warning should have been provided. - See 

Azure, 596 P.2d at 472. The District Court did not abuse its 

discretion in allowing plaintiff's expert to testify 

concerning one of the bases upon which he formed his opinion. 

GM's expert Paul Johnson testified that the torque 

specifications of the limited slip differential in the alternative design transfer case advocated by Krueger were not 

sufficient to hold the vehicle in place on the accident 

slope. During cross examination of the witness, Krueger's 

counsel referred to a hypothetical phone call where a Borg 

Warner employee had confirmed that the specifications were 

indeed the ones given in the testimony of Krueger's expert, 

and thus would have immobilized the accident vehicle or at 

least sufficiently slowed its rolling to allow the plaintiff 

to get clear of the vehicle. Krueger's counsel challenged 
GM's expert to call Borg Warner during a recess and confirm 

the torque specifications of the alternative transfer case 

design. 

The District Court sustained GM's initial objection to 

this questioning, then allowed Krueger's counsel to inquire 

after the recess whether Mr. Johnson had made the phone call. 

At closing argument, Krueger's counsel commented on Mr. 

Johnson's failure to accept counsel's challenge to call Rorg 

Warner regarding the specifications. 

The situation here is similar to that in Gunnels v. Hoyt 

(Mont. 1981), 633 P.2d 1187, 38 St.Rep. 1492, where we held 

that the plaintiff was not prejudiced by several instances of 

alleged misconduct by defense counsel, the most serious being 

that defense counsel made improper comments upon and 

references to excluded evidence, which indicated to the jury 

that the plaintiff was concealing evidence. Improper 

argument requires a reversal of a verdict only when prejudice 

has resulted which prevents a fair trial. Gunnels, 633 P.2d 

at 1194; Nelson v. Hartman (1982), 199 Mont. 295, 301, 648 

P.2d 1176, 1179. Any prejudice suffered by the defendant 

here was minimal, and certainlv did not rise to such level as 

to deprive GM of a fair trial. 

VII. 

Finally, GM contends that the District Court erred in 

overruling GM's objections to Krueger's closing argument 

requesting the jury to "send a message to GM" when punitive 

damages were not an issue. 

We decline in this case to determine whether the "send a 

message" argument is proper or prejudicial in products liability litigation where punitive damages are not an issue. 

As we stated earlier, improper argument requires reversal of 

a verdict only when prejudice has resulted that prevents a 

fair trial. ----- Gunnels, - supra, 633 P.2d at 11.94; Nelson, supra, - - 
648 P.2d at 1179. Considering the severity and permanent 

nature of plaintiff's injuries, and the daily attendant care 

he will require for the remainder of his life, we see the 

amount of the the jury's verdict as compensation for the 

plaintiff's injuries and not merely a reflection of alleged 

inflammatory remarks made during the plaintiff's closing 

arguments. 

We conclude that there was no abuse of discretion by the 

District Court in denying General Motor's motions for directed verdict and new trial. 

AFFIRMED. 

We Concur: A