The HONORABLE DONALD D. ALSOP, United Sta tes District Judge for the * District of Minnesota, sitting by designation.



## United States Court of Appeals FOR THE EIGHTH CIRCUIT

_____________________ Nos. 97-2502 and 97-2611

_____________________ Bryan Robertson, * * Plaintiff - Appellee, * * v. * * Norton Company; Williams Equipment * Appeals from the United States & Supply Company, * District Court for the * Eastern District of Arkansas. Defendants - Appellants, * * -------------------------------------------------- * Continental Insurance Company, * * Intervenor Plaintiff - Appellee. *

___________ Submitted: January 12, 1998 Filed: June 1, 1998

___________ Before LOKEN and MURPHY, Circuit Judges, and ALSOP, District Judge. *

___________ LOKEN, Circuit Judge.-2-

On August 12, 1992, Bryan Robertson w as using a Black & Decker heavy-duty power s ander/grinder on a concrete bridge in Mountain View, Arkansas, working for a construction company owned by his father. Robertson released the grinder’s trigger and lifted it from the bridge surface. The cer amic-composite grinding wheel exploded, and splinters severely injured Robertson’s leg. After collecti ng workers’ compensation benefits, Robertson sued the grinding wheel manufacturer, Norton Company, and its distributor, Williams Equipment and Supply Company, for breach of warrantyand strict lia bility in tort. The compensation insurer intervened to assert its right to recove r benefits paid. Following trial, the jury found that the accident was proximately caused b y defendants’ conduct in manufacturing and sell ing the grinding wheel in a defective and unreason ably dangerous condition, and by Robertson’s own negligence. The jur y found that Robertson suffered damages of $129,482.55 and a pportioned fault under the Arkansa s comparative fault statute at 13% for Robertson and 87% for defendants

. Norton and Williams appeal the judgment entered on this verdict. The issues are (1) whether the district court erred in admitting expert testimony that defendants’ product warn ings were inadequate; (2) whether Robertson presented sufficient evidence tha t Nort on manufactured and Williams distributed the grinding wheel that exploded; and (3) wheth er the court committed plain error by failing to instruct the jury to assig n comparative fault to Robertson’s employer. Agreeing with defendants’ first contention, we reverse and remand for a new trial.

I. Expert Testimony About Product Warnings. At the time of the accident, Robertson had worked on bridge s for over five years and was familiar with the Black & Decker grinder. Norton grinding wheels wer e purcha sed separately from the grinder and bore a warning label stating: “Warning

. Imp roper use may cause grinding wheel breakage and serious injury. Comply with ANSI B7.1, OSHA, and safety guide furnished with package.” The “safety guide” was-3-

a separate pamphlet shipped to distributors with each box of wheels. It instructed users that grinders should be used with a whee l guard and should be stopped “on the work.” Williams placed these pamphlets near its display of grinding w heels but did not instruct employ ees to make sure customers received them. Robertson’s father purchase d grinding w heels from Williams but did not pick up the safety guide. When injured , Roberts onwas using a grinder without a wheel guard (though he knew OSH A regulations require a guard), and he lifted the still-spinning wheel off the work before it exploded. A principal witness at trial was Robertson’s ceramics expert, Dr. R oss Firestone. Muc h of Dr. Firestone’s testimony concerned whether the grinding wheel explode d because of an unreasonably dangerous manufacturing defect. At issue here is hi s fur ther testimony that Norton’s product warnings were “completely inadequate ” because the warning label did not explain “improper us e,” because a copy of the safety guide was not enc losed with each wheel in “blister pack” packaging, and because the warning label’s c ross reference to a 120-page ANSI publication was ineffective. The distr ict court overruled defendants’ attempts to exclude this testimony by a motion in limineand by a continuing objection at trial. We review the district court’s decision to admit expert testimony for abuse of discretion. Se e General Elec. Co. v. Joiner , 118 S. Ct. 512, 519 (1997).
Our prio r opinions have noted problems with expert testimony regarding th e adequacy of product warnings: In the first place the questions called for opinions of the witnesses on one of the ultimate questions in the case; they invaded the province of the jury ona question which the jury was entirely capable of answering withou t the benefit of their expert opinion, were we to assume that the se witnesses had qualified as experts on the adequacy of labeling. * * * * *Dr. Firestone’s forma l education in warnings consisted of a college entry-level 1 psycho logy course. His relevant qualifications were past membership in the Huma n Factor s Society and limited experience looking at literature and drafting warnings for a coal gasification facility. He was not familiar with t he ANSI guidelines for warnings.

-4- Further . . . thes e two witnesses were [not] qualified to express an opinion as to the adequacy of warnings and directions. . . . Whether or not agiven warning is adequate depends upon the language used and th e impression that it is calcu lated to make upon the mind of an average user of the product. Questions of display, syntax, and emphasis are involved in evaluating a warning, or set of dire ctions, and upon those matters plant pathologists and entomologists are not necessarily qualified to speak.
Walton v. Sherwin-Williams Co. , 191 F.2d 277, 285-8 6 (8th Cir. 1951); accord Strong v. E.I. DuPont de Nemours Co. , 667 F.2d 682, 686 (8th Cir. 1981). All of thes e problems are present in this case. First, while Dr. Firestone was undoubtedly qualified to testify about a manufacturing defect in an exploding cerami c grinding wheel, that did not qualify him as an expert on grinding wheel warnings. He had never designed a warnin g for a ceramic product. His knowledge of ceramics would not provide th e 1 expertise on “questions of display, syntax, and emphasis” that the jury would expect from a bona fide warnings expert.
Secon d, Dr. Firestone’s opinion was not supported by the kind of scientifi c theory, practical knowledge and experience, or empirical research and testing tha t permit assessment “of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can b e applied to the facts in issue.” Daubert v. Merrell Dow Pharmaceuticals, Inc. , 509 U.S. 579, 592-93 (1993), quoted in Gier v. Education al Serv. Unit No. 16 , 66 F.3d 940, 943 (8thCir. 1995). For example, Dr. Firestone criticized Norton’s warning label for not explaining “improper use.” But grinding wheels are u sed in grinders. Firestone did not consider whether Norton could feasibly provide a description of “improper use” that-5-

would a ccurately and effectively encompass all the machines in which its grindin g wheels might be used. Indeed, he did not even review the warnings accompanying the Black & Decker grinder in question to determine whether “improper use” wa s effectively explained to end users. Thus, his o pinion was not sufficiently reliable under Daubert

. See Wright v. Willamette Indus. , 91 F.3d 1105, 1108 (8th Cir. 1996). Third, Dr. Firestone’s opinion squarely addressed an ultimate issue of fact

. Although t hat is permissible, see Fed. R. Evid. 704(a), courts must guard agains t “invad [ing] the province of the jury on a question which the jury was entirely capable of an swering without the benefit of . . . expert opinion.” Walton , 191 F.2d at 285

. Givenhis lack of qualifications regarding warnings and his failure to consider in a system atic fashion the problems inherent in devising a warning for a product of thi s type, Firestone’s opinion added nothing helpful to the jury’s consideration of this issue. Finally, Dr. Firestone’s improper opinion testimony was unfairly prejudicial. The warning issue was relevant to Robertson’s strict liability a nd breach of warranty claims. See Hill v. Searle Laboratories , 884 F.2d 1064, 1066-67 (8th Cir. 1989) (unde r Ar kansas law, inadequate warning is a basis of strict liability and breach of warrant y liability). The court instructed the j ury that “[a] product may be defective if it does not have a reasonably ad equate warning,” and that to be merchantable a product must “be adequat ely . . . labeled.” These instructions tracked Dr. Firestone’s opinion tha t Nort on’s warnings were “completely inadequate.” Robertson’s inadequate warnin g claim was emphasized in opening and closing arguments. Robertson argues that Norton an d Williams failed to preserve this issue because the verdict form does not reveal whether the jury found a manufacturing defect, a n inadeq uate warning, or both. We disagree. When evidence relevant to one of tw o theories subsumed in a verdict is erroneously admitted, the verdict is set aside unless we ar e “convinced that the jury proceeded only on the sound ground.” Mueller v

. Hubbard Milling Co. , 573 F.2d 1029, 1039 (8th Cir.), cert. denied , 439 U.S. 865-6-

(1978). We are not convinced the jury based its verdict solely on the hotly contested manufacturing defect claim. Accordingly, we conclude that the district court abused its discretion in admitting this opinion testimony. Defendants are entitled to a new trial. II. Sufficiency of the Evidence.
The grinding wheel exploded into fragments, making identification of it s manufacturer a key issue at trial. On the one hand, Robertson testified the wheel had a Norton label. His father testified he only bought Norton wheels from Williams, and there was evidence Williams only sold Norton wheels. On the other hand, laboratory analysis of a wheel fragment showed it was manufactured with barium sulphate filler, and Norton presented evidence it stopped using that f iller compound many years before the accident. On a

ppeal, defendants argue they are entitled to judgment as a matter of law b ecause Robertson presented insufficient evidence that Norton manufactured and Williams distributed the defective wheel. Reviewing the conflicting trial evidence on this issue in the light most favorable to the jury’s verdict, as we must, we agree with the dis trict court that the evidence was sufficient to permit the jury to find that Norto n ma nufacturedand Williams distributed a grinding wheel that exploded due to a manufacturing defect.

III. Comparative Fault of Robertson’s Employer.
Norton an d Williams contended at trial that the negligence of Robertson’ s employer was an intervening sole proximate cause of his damages. The district court instructed the jury on intervening cause. However, the court refused defendants ’ requ estto include Robertson’s employer in its comparative fault interrogatory to th e jury. On appeal, Norton and Williams argue the court erred in refusing to instruct the jury to apportion fault to Robertson’s employer as a so-called “phantom” party, a n instruction we encouraged in dicta in Chaney v. Falling Creek Me tal Products, Inc. , 906 F.2d 1304, 1308 n.7 (8th Cir. 1990).See generally Edmonds v. Compagnie Generale Transatlantique , 443 U.S. 256, 2 273-81 (19 79) (Blackmun, J., dissenting); Dietz v. General Elec. Co. , 821 P.2d 16 6 (Ariz. 1991), cert. denied , 503 U.S. 998 (1992); Lake v. Construction Mach., Inc. , 787 P.2d 1027 (Ala. 1990); Heckendorn v. Consolidated Rail Corp. , 465 A.2d 609 (Pa

. 1983); Lambertson v. Cincinnati Corp. , 25 7 N.W.2d 679 (Minn. 1977); La. Civ. Code Ann. art. 2323(A); Utah Code Ann. § 78-27-39; Wash. R ev. Code Ann. § 4.22.070(1). -7- There are two distinct aspe cts to this problem. First is the question we squarely addresse d in Chaney , whether the district court properly submitted the issue o f interv ening cause. We reversed in Chaney because the jury’s interrogatory answer s suggested that plaintiff’s negligence was the intervening cause (rather than he r emp loyer’s negligence), and the trial court had not instructed on the foreseeability o f that negligence to the defendant product manufacturer. There is no such problem in this case. Although Norton and Williams mention the intervening cause instruction i n passing, they do not raise an intervening cause issue on appeal. Thus, our holding in Chaney is not at issue in this case.
The seco nd question concerns the suggestion in Chaney ’s footnote 7 that a n al legedly negligent employer should be included as a phantom party in the Arkansa s comparative fault instruction “to clarify the legal effect of [the employer’s] conduct.” The district court concluded this footnote was implicitly overruled by Hiatt v. Mazda Motor Corp. , 75 F.3d 1252, 1258 (8th Cir. 1996). However, Hiatt did not involve a workers’ compensation situation, so it does no t squarely answer the question presented by this case. The relevance of an employer’s negligence to an employee’s tort clai m again st a third party is a contentious segment of workers’ compensation law, with the varying answers often turning on differences in the workers’ compensation statute s enacted by the several States. 2 Under the Arkansas statutory workers’ com pensation regime, employees injured on th e job give up tort remedies against their employers in exchange for guarantee d benefits without re gard to fault. See Ark. Code Ann. § 11-9-105. Employees recover-8-

stat utorily defined benefits, and employers avoid the risk of large tort verdicts. Se e Hood & Hardy, Workers’ Compensation & Employee Protection Laws in a Nutshell 26- 27 (1984). However, the injured employee retains fault-based causes of action against res ponsible third parties such as Norton and Williams, regardless of the employee’ s eligibility for workers’ compensation benefi ts. Moreover, the employer or its workers’ comp ensation insurer may recover benefits paid to the injured employee from a thir d party tortfeasor. See Ark. Code Ann. § 11-9-410. At the same time, the employer’ s immunity from direct action by the injured employee bars the third party tortfeasor from assertin g a contribution claim based upon the employer’s negligence. See W.M

. Bashlin Co. v. Smith , 643 S.W.2d 526, 534 (Ark. 1982); C & L Rural Elec. Coop

. Corp. v. Kincaid , 256 S.W.2d 337, 340-41 (Ark. 1953).
We conclude the district court did not abuse its discretion in refusing to include Robertson’s employer as a phantom party in the comparative fault instruction. Th e comparative fa

ult statute provides that “liability shall be determined by comparing the faultcharg eable to a claiming party with the fault chargeable to the party or partie s from whom the claiming party seeks to recover damages .” Ark. Code Ann. § 16-64- 122(a) (emphasis added). As Robertson is not seeking damages from his employer, the plain meaning of this statute excludes his employer from the comparative fault inquiry. See Freislinger v. Emro Propane Co. , 99 F.3d 1412, 1419 (7th Cir. 1996). Moreover, even if Robertson’s prior claim for workers’ compensation benefits wer e considered a claim for damages for purposes of § 16-64-122(a), as the cour t conclud ed in construing a similar statute in Inland/Riggle Oil Co. v. Painter , 925 P.2d 108 3, 1086 (Colo. 1996), we fail to see how including Robertson’s employer in th e comparative fault instruction serves any useful purpose under Arkansas law. Neither Robertson nor defendants may recover from the employer in tort because workers ’ compensat ionbenefits are an exclusive remedy. See Elk Corp. of Ark. v. Builder s Transp., Inc. , 862 F.2d 663, 666 (8th Cir. 1988); Dulin v. Circle F Indus., Inc. , 558 F.2d 456, 464 (8th Cir. 1977). Adding a phantom defendant’s fault to the equation-9-

cannot increase Robertson’s comparative fau lt percentage. Finally, because Arkansas, un like many other States, did not abolish or limit joint and several liability when i t enacted com

parative fault, see Ark. Code Ann. §§ 16-61-201 et seq. , and because the workers’ compensation statute does not limit a third pa rty’s liability to the employee on account o f the employer’s negligence, a jury finding of comparative fault by th e employer would not reduce or otherwise affect defendants’ liability to Rob ertson, unless of course the employer’s negligence amounted to an intervening cause. The judgment of the district court is reversed and the case is rema nded for further proceedings not inconsistent with this opinion. A true copy.

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