F I L E D

United States Court of Appeals

Tenth Circuit

AUG 19 2003

PATRICK FISHER

Clerk

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

ROSE MARY AHRENS,

Administrator of the Estate of

Lawrence P. Ahrens,

Plaintiff - Appellant,

v.

FORD MOTOR COMPANY and 

NEW HOLLAND NORTH

AMERICA, INC.,

Defendants - Appellees.

No. 02-6284

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF OKLAHOMA

(D.C. No. 01-CV-398-HE)

John Gehlhausen, Lamar, Colorado, for Plaintiff-Appellant.

Joseph Walters (Amy T. Kranenburg with him on the brief) of McAfee & Taft,

P.C., Oklahoma City, Oklahoma, for Defendants-Appellees.

Before SEYMOUR, McKAY and LUCERO, Circuit Judges.

McKAY, Circuit Judge.
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In this diversity action, Appellant Rose Mary Ahrens brought suit against

Appellees Ford Motor Company and New Holland North America, Inc., for the

wrongful death of her husband, Lawrence P. Ahrens. In her complaint, Appellant

alleged strict liability for a design defect, failure to warn of defects, and

inadequate post-sale warnings.

The district court, after reviewing the pleadings, affidavits, and depositions

of expert and lay witnesses and other discovery, determined that the undisputed

facts established that the tractor was not defective or unreasonably dangerous

beyond the expectations of the ordinary consumer. Therefore, the district court

granted Appellees’ motion for summary judgment, and Appellant has appealed. 

The facts, construed in favor of Appellant for purposes of reviewing a grant

of summary judgment, indicate that on October 11, 2000, Mr. Ahrens was driving

a Ford Model 5000D tractor on a country road near Welch, Oklahoma, pulling a

folded rake. An unidentified motorist crashed into the rake from behind,

throwing Mr. Ahrens from the tractor. The tractor ran over Mr. Ahrens, crushing

and killing him.

The tractor was manufactured on July 23, 1967. The tractor was never

equipped with a rollover protection system (ROPS), which is a safety system that

includes both a rollover bar and a seat belt. The ROPS is designed to protect the

operator of the tractor from rollover accidents and from being thrown from the
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tractor. Appellant alleges that Appellees are liable for the wrongful death of her

husband because (1) the tractor was defective and unreasonably dangerous due to

the absence of a ROPS at the time of sale, (2) the tractor was defective and

unreasonably dangerous due to Appellees’ failure to give adequate warnings of

the need for a ROPS, and (3) Appellees failed to give adequate post-sale warnings

to its customers about the need for a ROPS. Appellant also alleges that the

district court erred in excusing two Ford employees from giving depositions.

Because this is a diversity case, we rely on the substantive law of

Oklahoma and apply federal procedural law. See Boyd Rosene & Assocs., Inc. v.

Kansas Mun. Gas Agency, 174 F.3d 1115, 1118 (10th Cir. 1999); Allen v.

Minnstar, Inc., 8 F.3d 1470, 1476 (10th Cir. 1993). Therefore, we will apply

Oklahoma products liability law to the three substantive claims and federal law to

the denial-of-depositions issue. We review grants of summary judgment de novo

to determine whether any genuine issue of material fact exists, viewing all

evidence and any reasonable inferences that might be drawn therefrom in the light

most favorable to the non-moving party. Dye v. United States, 121 F.3d 1399,

1403 (10th Cir. 1997); Richmond v. ONEOK, 120 F.3d 205, 208 (10th Cir. 1997). 

We review discovery orders for abuse of discretion. Florida v. Kerr-McGee

Corp., 669 F.2d 620, 623 (10th Cir. 1982). 

Appellant’s first claim is that the tractor that Mr. Ahrens was operating at
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the time of his death was defective and unreasonably dangerous due to the

absence of a ROPS. An important part of a ROPS system is a seat belt. As

experts in this case have testified, manufacturers in the United States do not

install seat belts in tractors without also including a rollover bar. See App., Vol.

2, at 469. To do so would likely make tractors less safe than without a ROPS at

all since, should a rollover occur, a seat-belted operator would have little chance

of jumping or being thrown clear of the tractor. See id. 

To prevail on her claim of defective design, Appellant must show that (1)

the tractor was defective, (2) the tractor was dangerous to an extent not

contemplated by an ordinary consumer, (3) the defect existed at the time it left the

possession and control of the manufacturer, and (4) the defect proximately caused

the injuries. Woods v. Fruehauf Trailer Corp., 765 P.2d 770, 773-74 (Okla.

1988); Lamke v. Futorian Corp., 709 P.2d 684, 686 (Okla. 1985). We assume for

summary judgment purposes that had Mr. Ahrens been wearing a seat belt at the

time of the accident, he would not have been thrown from the tractor and killed. 

Therefore, as both parties appear to agree, the primary issue in this case is

whether the absence of a seat belt rendered the tractor unreasonably dangerous to

an extent beyond the contemplation of the ordinary consumer. 

Appellant concedes that the absence of a rollover bar and seat belt is

obvious to the consumer but argues that the tractor is unreasonably dangerous
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because the risks associated with operating a tractor without a ROPS are

significantly greater than the ordinary consumer would expect. However, as the

district court recognized, Appellant’s experts rely primarily on evidence of the

risks associated with rollover accidents. Mr. Sevart, Appellant’s primary expert,

testified in his affidavit that few consumers consider the risk of rollover and

overestimate their ability to avoid a rollover accident. See App., Vol. 2, at 470. 

Indeed, Mr. Sevart’s entire affidavit is devoted to the risks of rollover. Appellant

has failed, either through Mr. Sevart’s testimony or elsewhere, to introduce

evidence that the absence of a seat belt rendered the tractor unreasonably

dangerous to an extent beyond that of the ordinary consumer. 

Unfortunately for Appellant’s case, this case does not involve a rollover. 

Mr. Ahrens was not killed because the tractor rolled over, but rather because he

was thrown from the tractor. Consequently, the district court was correct in

concluding that evidence of rollovers was irrelevant to the determination of

whether the tractor was unreasonably dangerous and was therefore inadmissible. 

In a products liability case, evidence of other accidents is not admissible to prove

a defect unless the facts of the other accidents are substantially similar. Wheeler

v. John Deere Co., 862 F.2d 1404, 1408 (10th Cir. 1988). 

Appellant has not argued that Mr. Ahrens would have been saved by a

rollover bar alone, but rather by a seat belt. Therefore, Appellant must produce
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evidence that the absence of a seat belt rendered the tractor unreasonably

dangerous to an extent beyond the contemplation of an ordinary consumer. 

Appellant attempts to bridge the gap of causation by pointing to evidence of the

high risk of rollover accidents. Appellant argues that the seat belt and rollover

bar are integrally connected in a comprehensive ROPS system and that the tractor

at issue was unsafe because it did not include that system.

To use the language of the district court, Appellant is trying to “bootstrap”

evidence of the risks of rollovers to a case involving substantially dissimilar

circumstances. Oklahoma law requires that we look to the risks within the

contemplation of the ordinary consumer. Therefore, evidence that ordinary

consumers underestimate the risks of rollover tells us nothing about consumers’

contemplation of risks associated with operating a tractor without a seat belt. 

Appellant argues that her legal theory is based on the lack of an integrated

ROPS and not the lack of a seat belt alone, suggesting that “in product liability

cases the Plaintiff’s theory of defect, not the always varying accident facts, should

determine substantial similarity.” Aplt. Br. at 23. Unfortunately for Appellant,

this argument turns the law on its head. The facts of the case, however they

misfit the legal theory, always govern the case.

Therefore, the relevant factual issue here is the degree to which the

ordinary consumer would contemplate the danger of not having a seat belt in the
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event of a collision. As the district court explained, to the limited extent that

Appellant’s expert addressed the risks of operating a tractor without a seat belt,

that testimony is inadmissible because the issues could be understood by an

ordinary jury. See Getter v. Wal-Mart Stores, Inc., 66 F.3d 1119, 1124 (10th Cir.

1995); Thompson v. State Farm Fire & Cas. Co., 34 F.3d 932, 941 (10th Cir.

1994). 

Because Appellant has failed to show how the lack of a seat belt on a

tractor constitutes a risk beyond the contemplation of the ordinary consumer, we

agree with the district court that the tractor involved in this case was not defective

for lack of a seat belt. Therefore the court’s grant of summary judgment in favor

of Appellees on the design defect claim was not error.

Appellant also disputes the district court’s grant of summary judgment in

favor of Appellees with respect to her claim that Appellees failed to give

adequate warnings to consumers about the need for a ROPS. A product may be

considered “defective if it is placed in the hands of the ultimate consumer without

adequate warnings of the dangers involved in its use.” McKee v. Moore, 648

P.2d 21, 23 (Okla. 1982).

Once again, Oklahoma law requires that we look to the expectations of the

ordinary consumer. The duty to warn is only implicated where the manufacturer

has no reason to expect ordinary users to discover the danger involved. Duane v.
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Oklahoma Gas & Elec. Co., 833 P.2d 284, 286 (Okla. 1992). Moreover,

Oklahoma does not recognize a duty to warn of dangers that are obvious. See

Lamke, 709 P.2d at 687; Steele v. Daisy Mfg. Co., 743 P.2d 1107, 1109 (Okla. Ct.

App. 1987). 

As discussed above, the danger of falling off of a tractor not equipped with

a seat belt is open and obvious to an ordinary consumer. Appellant contends,

however, that while the absence of a ROPS (including a seat belt) is obvious, the

risk of rollovers is not obvious to the ordinary consumer and, therefore, a warning

was required. Nevertheless, as discussed above, Appellant’s burden is specific to

seat belts. While Appellant’s experts may be correct in asserting that the ordinary

consumer under-appreciates the risk of rollover, this assertion tells us nothing

about the ordinary consumer’s expectations about falling off.

Appellant has not shown that the risk of falling from a tractor without a

seat belt is beyond the contemplation of an ordinary consumer. Therefore, we

agree with the district court that, as a matter of law, the tractor in question was

not defective for failure of Appellees to provide warnings about the lack of a seat

belt or the risks of operating the tractor without a seat belt. 

Appellant also alleges that Appellees failed to provide adequate post-sale

warnings about the risks associated with the lack of a ROPS. While recognizing

that it is unclear whether Oklahoma has recognized a post-sale duty to warn, we
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agree with the district court that, having determined that no actionable defect

existed and that no duty to warn existed, the claim of a post-sale duty to warn is

without merit. 

Finally, Appellant argues that the district court erred in conditionally

excusing two Ford employees from giving depositions. We review discovery

orders for abuse of discretion. Florida v. Kerr-McGee Corp., 669 F.2d 620, 623

(10th Cir. 1982). 

Appellant sought to depose W. J. Foxwell and John O’Donnell. Both men

were engineers employed by Ford who were involved in the design and

engineering of the tractor in question. In light of the ages and health conditions

of the two men, the court excused them from giving their depositions, at least

until Appellant had deposed Mr. Abramczyk, Appellees’ expert. The court

appears to have determined that the information sought of the two elderly men

could be obtained from Mr. Abramczyk. 

Appellant argues that the district court abused its discretion in excusing the

two men from giving their depositions because their knowledge of the design and

engineering of the tractor was unique and first-hand, as opposed to Mr.

Abramczyk’s speculative expert testimony. A court’s discretion to quash a

discovery request due to a witness’ failing health or the overly burdensome nature

of the request is well established, particularly where the information is believed to
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be obtainable from another source. See Fed. R. Civ. P. 26(b)(2) and (c); Micro

Motion, Inc. v. Kane Steel Co., Inc., 894 F.2d 1318, 1323 (Fed. Cir. 1990); Baine

v. Gen. Motors Corp., 141 F.R.D. 332, 334 (M.D. Ala. 1991); Trebby v. Goodyear

Tire & Rubber Co., 129 F.R.D. 468, 469 (S.D.N.Y. 1990).

While the parties argue about the comparative value of the testimony by

Mr. Abramczyk, the severity of the employees’ health and memory problems, and

the degree of burden that the request poses, we do not resolve such issues de

novo. We must merely determine whether the district court abused its discretion

in excusing the depositions. Considering the age and health status of the

employees and the district court’s belief that Mr. Abramczyk’s testimony would

yield comparable evidence, we cannot conclude that the district court abused its

discretion in excusing the depositions.

On appeal, Appellees filed a motion seeking to strike certain material from

Appellant’s opening brief, arguing that such material was not presented before the

district court. Whereas our general rule is not to consider evidence not presented

to the district court, some circuits have applied equitable principles to supplement

the record with material surfacing after the district court proceeding. John

Hancock Mut. Life Ins. Co. v. Weisman, 27 F.3d 500, 506 (10th Cir. 1994); Allen

v. Minnstar, Inc., 8 F.3d 1470, 1474 (10th Cir. 1993). Without deciding whether

the facts in this case warrant the exercise of such equitable discretion, we
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conclude that because we are affirming the district court’s order there is no harm

in allowing the material as part of the appellate record. Appellees’ motion is

therefore DENIED.

AFFIRMED.