The Honorable Robert R. Beezer, United States Circuit Judge 1

for the Ninth Circuit, sitting by designation.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 96-3605

___________

 * 

Air Evac EMS, Inc. *

 *

Appellee, *

 * Appeal from the United States

v. * District Court for the Western

 * District of Missouri

Aeronautical Accessories, * 

Inc., Edwards & Associates, * [UNPUBLISHED]

Inc., * 

 *

Appellants. *

_____________

Submitted: June 13,1997

 Filed: September 5,1997

______________

Before RICHARD S. ARNOLD, Chief Judge, BEEZER and WOLLMAN, 1

Circuit Judges

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BEEZER, Circuit Judge:

Defendants Aeronautical Accessories, Inc. (“Aeronautical”) and

Edwards & Associates, Inc. (“Edwards”) appeal the district court’s

jury verdict in favor of plaintiff Air Evac EMS (“Air Evac”) in Air

Evac’s product liability action. We have jurisdiction pursuant to

28 U.S.C. § 1291. We affirm in part and reverse and remand in

part.
2

I

This product liability action arises from a helicopter

accident. Early in the morning on April 1, 1988, pilot David

Short, flying a Bell helicopter to an accident scene, decided to

abort the mission due to weather conditions. The helicopter was

equipped with a “nightscanner” light, a rotating search light

mounted underneath the helicopter. When Short activated the

nightscanner in order to check his forward visibility, the glare

from the light temporarily blinded him. He attempted to turn off

the nightscanner, but the light failed to extinguish, causing Short

to lose visual reference to the ground. Short then lost control of

the helicopter and it crashed into a field near Springfield,

Missouri. Short and his passengers sustained injuries.

The owner of the helicopter, Air Evac, brought this action

against Edwards, the installer of the nightscanner system, and

Aeronautical, a previous owner of the helicopter, along with other

defendants who have since been dismissed. The jury returned a

verdict in favor of Air Evac, holding that Short was ten percent at

fault and the defendants ninety percent at fault. The district

court awarded Air Evac $1,076,323.36 plus pre-judgment and postjudgment interest. The court denied the defendants’ motion to

alter or amend the judgment. This timely appeal followed.

II

Defendants first argue that the district court abused its

discretion in admitting the testimony of Air Evac’s expert witness

Michael Postiglione. See Peitzmeier v. Hennessy Indus., Inc., 97

F.3d 293, 296 (8th Cir. 1996) (reviewing admission of expert

testimony for abuse of discretion). Defendants contend that 
3

Postiglione's testimony is inadmissible under Daubert v. Merrell

Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).

 Postiglione testified that he found visual evidence that the

contact points on the relay of the nightscanner had welded; other

experts testified that they could not detect evidence of welding

either through visual observation or with the use of a scanning

electron microscope. If such welding occurred, it would cause the

light to remain illuminated even after the pilot moved the switch

into the "off" position.

Defendants allege that Postiglione’s testimony is inadmissible

because he based his conclusion on visual inspection alone, rather

than employing other methods of inspection as did the other

experts. But weakness in the factual basis of expert testimony

goes to the weight, and not the admissibility, of that testimony.

Loudermill v. Dow Chem. Co., 863 F.2d 566, 570 (8th Cir. 1988)

("[a]s a general rule, the factual basis of an expert opinion goes

to the credibility of the testimony, not the admissibility, and it

is up to the opposing party to examine the factual basis for the

opinion in cross-examination"); see also Fed. R. Evid. 703. “Only

if an expert's opinion is so fundamentally unsupported that it can

offer no assistance to the jury must such testimony be excluded.”

Hose v. Chicago Northwestern Transp. Co., 70 F.3d 968, 974 (8th

Cir. 1995) (internal quotation omitted). 

The district court addressed the admissibility of

Postiglione's testimony in its denial of defendants' motion for

summary judgment. The court noted that Postiglione's opinion was

not solely based upon visual inspection but also upon his analysis

of the testimony of others and his experience with electrical

components and relays. Further, we note that the defendants

presented no evidence that the general practice of inspecting an

electrical relay for malfunction excludes visual observation. The
4

district court did not abuse its discretion in admitting the expert

testimony; it was the jury’s province to weigh the credibility of

Postiglione’s testimony.

III

Defendants next argue that the district court abused its

discretion in admitting evidence of the failures of nightscanners

that contained relays different from the relay in the nightscanner

at issue. We review the district court's ruling on admissibility

of evidence for an abuse of discretion. United States v. Mendoza,

85 F.3d 1347, 1351 (8th Cir. 1996).

A primary evidentiary issue at trial concerned whether the

relay in the nightscanner could accommodate the in-rush current

passing through it without causing the light to remain illuminated

after the unit was switched into the "off" position. The

nightscanner at issue was a Symbolic Display assembly, containing

a mechanical, 60-amp relay, labeled an “MB3D” relay. Defendants'

expert testified that this relay could accommodate the in-rush

current. The district court allowed Air Evac to introduce evidence

concerning the failure of nightscanners which used Glare-Ban

assemblies. Glare-Ban assemblies contain printed circuit contact

70-amp relays. The evidence established that Symbolic Display

assemblies and Glare-Ban assemblies are interchangeable, and thus,

are subject to the same in-rush current.

Because Glare-Ban and Symbolic Display assemblies contain

different relays, the defendants argue that the evidence relating

to failures of nightscanners containing Glare-Ban assemblies is not

substantially similar to the evidence concerning the failure of the

nightscanner used by Air Evac. See McKnight v. Johnson Controls,

Inc., 36 F.3d 1396, 1410 (8th Cir. 1994) (evidence of other

accidents is admissible only if the other accident is substantially
5

similar to the accident at issue). As the district court noted,

however, the evidence of the failures of the Glare-Ban

nightscanners was relevant both: (1) to impeach the testimony that

the 60-amp relay could handle the in-rush current and (2) to

establish that the defendants' engineer was negligent in not

adequately testing the MB3D relay to ensure it could accommodate

the in-rush current before installing that relay into the Symbolic

Displays nightscanner. The district court did not abuse its

discretion in admitting the evidence concerning the failure of the

Glare-Ban nightscanners.

IV

Defendants also assert that the district court erred in

admitting evidence of the failures of three other Symbolic Display

nightscanners which contained MB3D relays. Defendants offer no

argument supporting this claim other than stating that the failures

were too remote in time to be of probative value. Defendants’

argument can be characterized as a claim that the evidence should

not have been permitted under Federal Rule of Evidence 403. Under

this rule, a District Court is permitted to exclude relevant

evidence "if its probative value is substantially outweighed by the

danger of unfair prejudice, confusion of the issues, or misleading

the jury, or by considerations of undue delay [or] waste of time."

Fed. R. Evid. 403. We will not reverse a district court's

determination respecting the admissibility of evidence under Rule

403 absent a clear and prejudicial abuse of discretion.

International Travel Arrangers v. NWA, Inc. 991 F.2d 1389, 1400

(8th Cir. 1993). 

Although the subsequent failures of other Symbolic Display

nightscanners occurred between five and eight years after the Air

Evac accident, the district court found that the subsequent

failures were substantially similar to the failure of the 
6

nightscanner used by Air Evac, and, thus the evidence had

significant probative value. For example, the other Symbolic

Display nightscanners that subsequently failed had configurations

and modifications identical to the nightscanner at issue.

Moreover, evidence was presented that on each failed Symbolic

Display nightscanner the light tended to remain illuminated after

being turned into the “off” position. Evidence of other accidents

can be used to prove causation. McKnight, 36 F.3d at 1410. The

district court did not abuse its discretion.

V

Next, defendants contend that the district court erred in

giving the jury a "negligent failure to warn" instruction. We

review jury instructions for abuse of discretion. Karcher v.

Emerson Elec. Co., 94 F.3d 502, 510 (8th Cir. 1996), cert. denied,

117 S. Ct. 1693 (1997). Under Missouri law, in order to prove

negligent failure to warn, the plaintiff must show that the

defendant knew or had reason to know about the dangerous condition.

Morris v. Shell Oil Co., 467 S.W.2d 39, 42 (Mo. 1971) (adopting

Restatement (Second) of Torts § 388). Air Evac presented evidence

that the defendants' engineer: (1) knew that the original

configuration of the nightscanner tended to remain activated even

after being switched "off"; (2) did minimal testing of his

modification to the nightscanner; and (3) did not test the amount

of current passing through the relay to ensure that the relay could

accommodate the current. This evidence was sufficient for the

district court to submit the failure to warn instruction to the

jury.

VI

Defendants further argue that the district court erred in

denying their motion for a directed verdict and motion for new 
7

trial because Air Evac failed to establish causation. We review de

novo the district court's denial of a motion for judgment as a

matter of law, which includes a motion for a directed verdict.

McKnight, 36 F.3d at 1400. We apply a much more deferential

standard in our review of a district court's denial of a motion for

a new trial: "The [district] court's decision will not be reversed

by a court of appeals in the absence of a clear abuse of

discretion." Lowe v. E.I. DuPont de NeMours & Co., 802 F.2d 310,

310-11 (8th Cir. 1986).

Defendants allege that Air Evac's circumstantial evidence did

not "tend to exclude any other reasonable conclusion" for the cause

of the accident. See Aetna Cas. and Sur. Co. v. General Elec. Co.,

758 F.2d 319, 322 (8th Cir. 1985) (under Missouri law, when

plaintiff relies on circumstantial evidence in product liability

case, evidence must tend to exclude other reasonable conclusions).

Defendants' argument relies on the exclusion of the testimony of

plaintiff's expert Postiglione. As discussed above, Postiglione's

testimony was properly admitted. Air Evac, therefore, did not rely

solely on circumstantial evidence to prove causation. The district

court did not err in denying defendants' motion for a directed

verdict and did not abuse its discretion in denying defendants'

motion for a new trial.

VI

Finally, defendants argue that the district court erroneously

awarded pre- and post-judgment interest. We review de novo

questions of state law. Kansas Pub. Employees Retirement Sys. v.

Blackwell, Sanders, Matheny, Weary & Lombardi, L.C., 114 F.3d 679,

687 (8th Cir. 1997).
8

A.

Defendants contest the award of pre-judgment interest,

calculated from December 4, 1991 to May 5, 1995, on the property

damage claim. Missouri Rev. Stat. §408.040(2) permits payment of

pre-judgment interest on tort claims, provided that: 1) the

claimant demanded payment or offered a settlement, via certified

mail, and (2) the judgment obtained exceeds the amount demanded.

Pre-judgment interest is available from 60 days after the demand

was made until the date of judgment.

Defendants argue that Air Evac's December 4, 1991 letter does

not meet these criteria because plaintiff did not send the letter

through certified mail and the judgment did not exceed the amount

demanded. In awarding pre-judgment interest, the district court

reasoned that because the damages were liquidated, Air Evac was

entitled to pre-judgment interest from the date it sent its demand

letter. 

Because a plain reading of the statute does not support the

district court’s reasoning, we hold that the district court erred

in granting pre-judgment interest on the property damage claim. We

remand for a determination, in accordance with § 408.040, of the

proper pre-judgment interest to be paid, if any, on the property

damage claim.

B.

Defendants also contest the pre-judgment interest award on the

contribution claim. Again, defendants argue that the district

court failed to apply § 408.040 to its determination of

pre-judgment interest and instead improperly relied on case law

holding that a liquidated claim is subject to pre-judgment

interest. The district court, however, correctly concluded that an
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action for contribution is not "grounded in tort" but rather is

more like a claim for unjust enrichment. See Rowland v. Skaggs

Cos., 666 S.W.2d 770, 773 (Mo. 1984) (en banc). As such, § 408.040

is inapplicable and pre-judgment interest is available from the

date plaintiffs first demanded payment on the contribution claim.

The district court did not err.

C.

Defendants next argue that the district court improperly

applied the Missouri pre-judgment statutory interest rate to the

post-judgment interest claim. Defendants correctly state that 28

U.S.C. § 1961 is the applicable statute. Section 1961 provides

that the federal interest rate applies to money judgments in any

civil case. Plaintiff concedes this issue. We remand for

recalculation of post-judgment interest in accordance with 28

U.S.C. § 1961.

AFFIRMED in part, REVERSED and REMANDED in part.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.