* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and col lateral estoppel. This court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### APR 7 1999 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

MAE ENFIELD, conservator and natural mother of JERRY ALLEN ENFIELD, Plaintiff-Appellee, vs. A.B. CHANCE COMPANY and EMERSON ELECTRIC COMPANY, Defendants-Appellants.

---------------------- CITY OF GOODLAND, KANSAS, Intervenor. No. 97-3377 (D.C. No. 94-CV-1423) (D. Kan.)

ORDER AND JUDGMENT *

Before KELLY , MCKAY , and LUCERO , Circuit Judges.
Plaintiff-appellee Jerry Allen Enfield was injured in 1992 by a utility pole that broke and fell on him while it was being remov ed from the ground. The injury occurred when the boom of a Pitman Polecat d igger-derrick (“Polecat”),- 2 -

manufactured by Defendant-appellant A.B. Chance, co llapsed while removing the pole from the ground. The boom was fastened to the mainframe of the Polecat with twenty-four bolts. These bolts broke, causing the boom to separate from the mainframe. The weight of the collapsing boom snapp ed the pole, causing it to fall on Mr. Enfield. Mr. Enfield brought this pers onal injury products liability diversity action based on Kansas law in September o f 1994. A jury found A.B. Chance fifty-percent responsible for Mr. Enfield’s injuries, and final judgment was entered against it in the amount of $1,733,002 with interest. A.B. Chance appeals from the judgment and claims that the distr ict court erred by: (1) admitting proof of other accidents; (2) admitting e vidence of subsequent use of the Polecat; and (3) improperly instructing the jury. The parties are familiar with the facts, and we discuss them further only as nece ssary to resolve the issues on appeal. Our jurisdiction arises under 28 U.S.C. § 1291, and we affirm.

A. Evidentiary Challenges A.B. Chance alleges that the district court committ ed the following errors in admitting proof of other accidents: (1) failing to require evidence that the other accidents were substantially similar before a dmitting them; (2) admitting evidence of other accidents through Defendant’s exp ert witness contrary to the requirements of Fed. R. Evid. 703; and (3) admittin g a Product Liability Task- 3 -

Force Report without finding substantial similarityof the accidents discussed in the report and without properly conducting a Fed. R . Evid. 401 and 403 analysis. In addition, A.B. Chance contends that the districtcourt committed the following errors in refusing to admit evidence regarding the Intervenor City of Goodland’s (“the City”) subsequent use of a pole puller: (1) misapplying Fed. R. Evid. 407 to the admission of the evidence; (2) misapplying Rule 407 to rebut the City’s claim that using a pole puller was not feasible; (3) misapplying Rule 407 because the purpose of the rule is to protect potential defenda nts, not third parties like the City. We do not overturn a district court’s decisi on to admit or exclude evidence absent an abuse of discretion, see McCue v. Kansas , 1999 WL 5064, at *3 (10th Cir. 1999), and then, only if a substantial right o f a party is affected. See Fed. R. Evid. 103; Coletti v. Cudd Pressure Control , 165 F.3d 767, 776 (10th Cir. 1999); Gomez v. Martin Marietta Corp. , 50 F.3d 1511, 1518 (10th Cir. 1995).

1. Proof of Other Accidents Evidence of other accidents in a product liability case may be admitted to show notice or defect, provided that the party offe ring the evidence demonstrates that “the circumstances surrounding the other accid ents were substantially similar to the accident involved in the present case.” Whe eler v. John Deere Co. , 862 F.2d 1404, 1407 (10th Cir. 1988). Whether accident s are substantially similar- 4 -

depends, in part, upon the theory of the case. See id. ; Ponder v. Warren Tool Corp. , 834 F.2d 1553, 1560 (10th Cir. 1987). However, the accidents need only be substantially similar, not exactly the same; the differences between the accidents not affecting their substantial similarity go to the weight of the evidence, not to its admissibility. See Wheeler , 862 F.2d at 1408. Here, the district court found that the six acciden ts were relevant and substantially similar to the accident at issue afte r receiving briefs and hearing arguments with respect to the admission of this evi dence. After reviewing the record, we find that the district court did not abu se its discretion in its ruling. All six accidents occurred prior to Mr. Enfield’s accid ent, and all involved the same component parts. See VI R. at 1884. Although the accidents did not occ ur in exactly the same manner as Mr. Enfield’s accident, precise similarity is not required. A.B. Chance relies on this court’s holding in Julan der v. Ford Motor Co. , 488 F.2d 839 (10th Cir. 1973), to support its argum ent that the court cannot admit evidence of the other accidents when the admission is based solely on similar component parts. However, the court in Julanderexcluded the evidence because there was no proof that the accidents occurred prio r to the accident at issue and, thus, evidence of the accidents was not justified t o prove notice. See id. at 846. While the Julandercourt could not determine “whether the precise pro blem- 5 -

encountered by the seven complainants was the same as that claimed to have been encountered by [the plaintiff],” the court’s holdin g did not rely on the lack of similarity of the problems. Id. In this case, all six accidents occurred prior to M r. Enfield’s accident; three occurred prior to the 1981 manufacture of the Polec at at issue, and three occurred after. See VI R. at 1884. A.B. Chance contends that evidence of the three accidents that occurred after the 1981 manufacture date should not have been admitted because Mr. Enfield did not allege that A. B. Chance had any postmanufacture obligations. Plaintiff presented evide nce of the six similar accidents in his case-in-chief. At the end of Plaintiff’s ca se in chief, the district court dismissed Plaintiff’s warning and warranty claims. See II R. at 631-32. At this point, A.B. Chance failed to request a limiting ins truction regarding the three accidents that occurred after 1981. These dismisse d claims did involve some post-manufacture, pre-accident obligations on A.B. Chance’s part. Therefore, the district court did not abuse its discretion in admi tting both the pre- and postmanufacture accidents. A.B. Chance also contends that the district court e rred in admitting evidence of these other accidents through Mr. Enfie ld’s expert witness, contrary to the requirements of Fed. R. Evid. 703. This con tention is without merit. The court had already ruled the evidence of the prior a ccidents admissible as relevant- 6 -

evidence. Thus, Rule 703 does not apply because th e expert’s opinion was based on admissible evidence, not “otherwise inadmissible hearsay .” Daubert v. Merrell Dow Pharmaceuticals, Inc. , 509 U.S. 579, 595 (1993) (emphasis added). Therefore, admission of the evidence was not improp er, and the district court did not abuse its discretion in allowing the expert to rely on the accidents already found to be substantially similar to the accident at issue. The trial court admitted a redacted version of A.B. Chance’s internal Product Liability Task Force Report, finding that i t was relevant to show notice of prior accidents. See II R. at 383-86. A.B. Chance argues that the tria l court erred in admitting the Report without finding substantial similarity of the accidents and without properly weighing the evidence under Fed. R . Evid. 401 and 403. We find that the district court did not abuse its disc retion in admitting the Report. First, the court reviewed the entire Report and onl y permitted Plaintiff to use the portions it determined to be relevant. See II R. at 383-86; see also Fed. R. Evid. 401. Second, the record reflects only a general re levance objection and shows that the district court carefully considered Rule 4 03 factors in determining which portions of the Report to admit. See II R. at 383-86. The court’s determination that the Report had probative value was clearly notan abuse of discretion. Likewise, the trial court carefully considered the question of similarity and concluded that, in fact, the accidents were of a si milar nature. We fail to see an- 7 -

abuse of discretion as argued.

2. Evidence of the City’s Subsequent Use of a Pole Puller A.B. Chance argues that the district court erred by refusing to admit evidence that, after Mr. Enfield’s accident, the Ci ty began using a pole puller in compliance with A.B. Chance’s operating manuals. A .B. Chance argues that the district court improperly excluded the evidence bas ed on Fed. R. Evid. 407, instead of Kansas law. Because A.B. Chance failed to raise the application of Kansas law to the district court, we will not consi der the issue for the first time on appeal. See Tele-Communications, Inc. v. Commissioner , 12 F.3d 1005, 1007 (10th Cir. 1993). A.B. Chance also contends that, given Rule 407, the court abused its discretion in refusing to admit the evid ence. After carefully reviewing all of A.B. Chance’s arguments and the record, we f ind that the district court did not abuse its discretion in declining to admit evid ence on the City’s subsequent use of a pole puller.

B. Jury Instructions A.B. Chance alleges that the district court committ ed the following errors in instructing the jury: (1) instructing the jury t hat a manufacturer has a “strict duty of care” which improperly states Kansas law an d misled the jury; (2)- 8 -

instructing the jury that evidence of a later-issue d standard was irrelevant; (3) declining to include A.B. Chance’s proposed jury in struction on substantial change or alteration to the polecat by the City. In a diversity case, the determination of the substance of a jury instructio n is a matter of state law, but the grant or denial of an instruction is a procedur al matter controlled by federal law. See Dillard & Sons Constr., Inc. v. Burnup & Sims Comt ec, Inc. , 51 F.3d 910, 915 (10th Cir. 1995). We review de novo wheth er the district court's instructions, considered as a whole, properly state d the applicable law and focused the jury on the relevant inquiry. Medlock v. Ortho Biotech, Inc. , 164 F.3d 545, 552 (10th Cir. 1999). “The instructions need not be entirely free from fault, but they may not serve to mislead the jury i n any way.” Dillard & Sons Constr., Inc. , 51 F.3d at 915.

1. Strict Duty of Care Instruction A.B. Chance contends that the district court erred in instructing the jury that a manufacturer has a “strict duty of care” bec ause the instruction improperly states Kansas law. However, this court has previou sly found that Kansas strict liability law includes such a duty and has upheld s imilar jury instructions. See Wheeler , 862 F.2d at 1412; Prince v. Leesona Corp. , 720 F.2d 1166, 1171 n.9 (10th Cir. 1983); Hardin v. Manitowoc-Forsythe Corp

. , 691 F.2d 449, 455 (10th- 9 -

Cir. 1982). Under the principles of stare decisis , we must abide by these holdings. See United States v. Brooks , 161 F.3d 1240, 1247 (10th Cir. 1998). In light of this court’s previous holdings and after analyzing the instruction as a whole, we find that this instruction adequately ref lects Kansas law.

2. Later-Issued Standard Instruction A.B. Chance argues that the district court erred in including the following instruction: Proof of compliance with a standard that was in eff ect at the time of manufacture is not a defense to a charge of negligence unless such practice is consistent with standards or ordin ary care. For example, a manufacturer’s compliance with a standar d that was in effect at the time of manufacture is not dispositiv e under Kansas law if it is shown that a reasonable manufacturer wouldhave done more. A standard that was issued and became effective aft er the date of manufacture is not relevant and should not be co nsidered by you on the question of whether defendant exercised ordi nary care. IV R. at 1461. In particular, A.B. Chance objects to the last sentence of the instruction. After considering the instruction as a whole, we conclude that it is consistent with Kansas law and the district court d id not err in giving it to the jury. See Rexrode v. American Laundry Press Co. , 674 F.2d 826, 832 (10th Cir. 1982) (finding, in a Kansas product liability case, standard that became effective after the product’s manufacture date to be “at bestremote.”).- 10 -

3. Refusal to Include A.B. Chance’s Instruction Finally, A.B. Chance asserts that the district court erred by refusing to include its proposed instruction on substantial change or alteration. The proposed instruction reads: A manufacturer is not liable when the cause of an a ccident was a substantial change or alteration in the product. Asubstantial change or alteration means that the configuration or operational characteristics of the product are changed or alter ed by affirmative conduct of some person in a manner that the defenda nt could not reasonably have foreseen would occur in the intende d or foreseeable use of the product. IV R. at 1347. A.B. Chance claims that the court’ s failure to include the instruction left the jury with “the impression thatsubstantial alteration was merely a factor to consider in assessing comparative fault , rather than being a bar to any liability on the part of A.B. Chance.” Aplt. Br. at 47-48. Again, we review the court’s instructions “as a whole to determine wheth er they properly stated the applicable law and provided an ample understanding of the applicable standards.” Dillard & Sons Contruction, Inc. , 51 F.3d at 915. Under Kansas law, a manufacturer may not be held li able for a product’s defective design where, after the product leaves th e manufacturer’s possession or control, there is an unforeseeable substantial modi fication to the product, and the accident would not have occurred but for the substantial modification. See Howard v. TMW Enterprises, Inc. , 1998 WL 918320, at *6 (D. Kan. 1998);- 11 -

Mason v. E.L. Murphy Trucking Co. , 769 F. Supp. 341, 345 (D. Kan. 1991). Thus, we must determine whether the court’s instruc tions as a whole allowed the jury to consider this defense. The charge given, considered as a whole, defines al teration in such a manner as to allow the jury to draw the inference s ought by the rejected instruction. It is apparent that the district court regarded the alteration defense as going to the general issue in the case and instruct ed the jury that there is no liability if the product was not defective or subst antially altered. See IV R. at 1462, 1464-65. The issue is not whether the instru ctions are faultless in every particular, and while it would have been preferable to give A.B. Chance’s proposed instruction, the instructions given to the jury allowed it to consider alteration as a bar to liability. Such a theory wa s argued. See III R. at 1198, 1203, 1208-09. In these circumstances, we decline to find reversible error. AFFIRMED.

Entered for the Court

Paul J. Kelly, Jr. Circuit Judge