PUBLISH

 

UNITED STATES COURT OF APPEALS

Filed 4/30/96TENTH CIRCUIT

_____________

KUSUM R. PANDIT, )

)

Plaintiff-Appellant, )

)

and )

)

GANESH S. PANDIT, deceased, by and through )

his Special Administrator, Rejeev S. Pandit, and )

LALITA PANDIT, deceased, by and through her )

Special Administrator, Rejeev S. Pandit, )

)

Plaintiffs, )

)

v. ) No. 95-3151

)

AMERICAN HONDA MOTOR CO., INC., )

HONDA MOTOR CO., LTD., and )

HONDA R&D CO., LTD., )

)

Defendants-Appellees. )

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Appeal from the United States District Court

for the District of Kansas

(No. 90-CV-1506)

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Kenneth G. Gale (David P. Calvert with him on the brief), of Focht, Hughey & Calvert,

of Wichita, Kansas, for the appellant.

Evan A. Douthit, of Douthit Frets Rouse & Gentile, L.L.C., of Kansas City, Missouri,

(Randall L. Rhodes, of Douthit Frets Rouse & Gentile, L.L.C., of Kansas City, Missouri,

and Larry A. Withers, of Kahrs, Nelson, Fanning, Hite & Kellogg, of Wichita, Kansas,

with him on the brief), for the appellees.

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Before SEYMOUR, Chief Judge, HOLLOWAY and BRISCOE, Circuit Judges.

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BRISCOE, Circuit Judge.

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Appellant Kusum Pandit was injured when a Honda Accord in which she was a

passenger stalled on Interstate 70 and was struck from behind by a Ford Bronco. 

Appellant sued the driver of the Bronco, American Honda Motor Co., Inc., Honda Motor

Co., Ltd., and Honda R&D Co., Ltd. After appellant settled with the driver of the

Bronco, she proceeded to trial against the remaining three defendants (collectively

appellees) on a strict liability design defect claim, and the jury found in appellees’ favor. 

She appeals three evidentiary rulings. We affirm.

I.

On March 25, 1990, appellant was the front seat passenger in a 1981 Honda

Accord driven by her husband, and her brother-in-law and sister-in-law were riding in the

back seat. They were crossing western Kansas, traveling east on Interstate 70. According

to appellant’s husband, at approximately 11:00 p.m., the headlights “twitched” and

gradually began to dim. He checked the instrument panel, but none of the warning lights

had activated. He mentioned the problem to his brother, and the two men began to look

for an exit from the Interstate. The headlights suddenly became so dim that appellant's

husband was unable to see the road. He reduced the speed of the Accord and began to

pull to the side of the road. The engine stalled, and the charge warning light activated. 

The car came to a stop in the right-hand lane. His brother suggested they push the Accord

onto the shoulder, and appellant's husband got out of the car. Before getting out of the

car himself, his brother indicated another vehicle was coming. Appellant’s husband took

a white plastic bag from under the driver’s seat and began waving it in an attempt to

attract the oncoming driver’s attention, but his efforts were unsuccessful. The oncoming

vehicle, a Ford Bronco, struck the Accord, seriously injuring appellant and killing her in-
1

 The parties argue this issue in terms of prior similar “claims,” as opposed to prior

similar “accidents.” Appellant does not distinguish between “claims” and “accidents”; indeed,

she relies heavily on our prior similar “accidents” case law. We believe the parties use the terms

interchangeably.

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laws.

Appellant sued the driver of the Bronco and appellees on various theories of

negligence and strict liability. The driver settled with appellant and her claims against

him were dismissed with prejudice. Appellant proceeded against appellees on only a

strict liability defective design claim. She contended the Accord’s charge warning light

system was defectively designed and unreasonably dangerous because the charge light

would not illuminate until the alternator was almost completely disabled. She alleged the

alternator was capable of producing a partial charge sufficient to prevent the warning

light from activating but insufficient to supply the battery with enough charge to operate

the headlights and the fuel pump. The engine cannot run without the fuel pump. She

argued the system was defective because it did not detect the reduced output and, as a

result, it did not warn the driver about an imminent dangerous situation. 

II.

Appellant argues the court erred by (A) admitting evidence of the lack of prior

similar claims, (B) admitting evidence of three tests conducted by one of appellees’

experts, and (C) excluding excerpts of a deposition she offered as rebuttal.

A.

The court allowed appellees to cross-examine appellant’s expert witnesses about

their knowledge of prior similar claims and to question one of their own expert witnesses

about the absence of prior similar claims.1

 The parties filed trial briefs in which they
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discussed the admissibility of evidence regarding the lack of prior similar claims. 

Appellees' append. 4-5 (appellees’ trial brief); appellant's append. I at 51-57 (appellant’s

supplemental trial brief). The court first addressed the question when appellant requested

that appellees be prevented from raising the lack of prior claims in their opening

statement. Appellant's append. I at 233-237. The court assented and ordered appellees to

refrain from raising the issue in their opening. Id. at 236. The court returned to the

question immediately before appellant’s direct examination of Dr. Ward Jewell, one of

her expert witnesses. Id. at 279-88. After a brief hearing, the court allowed appellees to

cross-examine Dr. Jewell about his knowledge of the existence of similar claims. Id. at

282, 288. Without a contemporaneous objection by appellant, appellees cross-examined

both of appellant’s experts about their knowledge of the existence of similar claims. 

Appellees' append. at 160-61, 170. During the defense case-in-chief, appellees explicitly

asked Robert Scholke, a product investigator for Honda North America and one of

appellees’ expert witnesses, about the existence of prior similar claims against Honda. Id.

at 286. Additionally, Joseph Kinderman, another of appellees’ experts, testified that he

did not believe the Accord’s warning system was defectively designed because many

automobiles contained the system and he had heard of no similar complaints. Appellant's

append. III at 656-57. Appellant did not make a contemporaneous objection to the

questions asked Scholke or to the testimony given by Kinderman. 

We review evidentiary rulings for abuse of discretion. Boughton v. Cotter Corp.,

65 F.3d 823, 832 (10th Cir. 1995). “Under the abuse of discretion standard, a trial court’s

decision will not be disturbed unless the appellate court has a definite and firm conviction

that the lower court made a clear error of judgment or exceeded the bounds of permissible
5

choice in the circumstances.” Id. (quoting McEwen v. City of Norman, Oklahoma, 926

F.2d 1539, 1553 (10th Cir. 1991)). However, if the complaining party fails to make a

contemporaneous objection, we determine only if the ruling was plain error. Fed. R.

Evid. 103(d); McEwen, 926 F.2d at 1545.

Appellees contend appellant did not object when they elicited testimony about the

lack of prior claims. They argue waiver and suggest we may review only for plain error. 

A three-part test determines whether a party must renew a motion in limine by a

contemporaneous objection at trial to preserve an issue for appeal. Green Const. Co. v.

Kansas Power & Light Co., 1 F.3d 1005, 1013 (10th Cir. 1993) (citing United States v.

Mejia-Alarcon, 995 F.2d 982, 987 (10th Cir.) (establishing the rule), cert. denied 114

S.Ct. 334 (1993)). To overcome the claim of waiver for failure to contemporaneously

object, we must satisfy ourselves that (1) the matter was adequately presented to the

district court; (2) the issue was of a type that can be finally decided prior to trial; and (3)

the court’s ruling was definitive. Id. All three elements are satisfied here: the parties

argued the question in their trial briefs, before appellees’ opening, and again before

appellees’ cross-examination; as presented by appellant, the question involved a general

legal issue which was capable of decision prior to trial; and the court addressed the issue

definitively and in detail, appellant's append. I at 279-88. We reject appellees’ waiver

argument and turn to the merits of appellant’s first issue. 

We have held that evidence of similar accidents is admissible in a products liability

case if the proponent provides a proper predicate. Wheeler v. John Deere Co., 862 F.2d

1404, 1407 (10th Cir. 1988); Ponder v. Warren Tool Corp., 834 F.2d 1553, 15690 (10th

Cir. 1987); Rexrode v. American Laundry Press Co., 674 F.2d 826, 829 n. 9 (10th Cir.),
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cert. denied 459 U.S. 862 (1982). This court has not addressed the converse--whether the

lack of prior similar accidents is likewise admissible. Other courts and commentators

generally agree that evidence of the lack of similar accidents is relevant to show (1)

absence of the defect or other condition alleged, (2) lack of a causal relationship between

the injury and the defect or condition charged, and (3) nonexistence of an unduly

dangerous situation. See, e.g., Espeaignnette v. Gene Tierney Co., 43 F.3d 1, 9-10 (1st

Cir. 1994); Hines v. Joy Mfg. Co., 850 F.2d 1146, 1152 (6th Cir. 1988); Sturm v. Clark

Equipment Co., 547 F. Supp. 144, 145 (W.D. Mo. 1982), aff’d 732 F.2d 161 (8th Cir.

1984); 1 McCormick on Evidence, § 200, pp. 850-51 (John W. Strong 4th ed. 1992). Cf.

Klonowski v. International Armament Corp., 17 F.3d 992, 996 (7th Cir. 1994) (upholding

exclusion of testimony because foundation lacking and discussing proper foundation);

Thomas R. Mulia, Annotation, Products Liability: Admissibility of Evidence of Absence

of Other Accidents, 51 A.L.R. 4th 1186 (1987). We believe this approach, which is

supported by the greater weight of persuasive authority, is the better reasoned view. 

Accordingly, we conclude that evidence of the absence of similar accidents or claims is

admissible as long as the proponent provides adequate foundation. To the extent

appellant argues evidence of lack of prior claims is per se inadmissible to prove defective

design, her argument is without merit.

Appellant also argues the evidence lacked adequate foundation. Specifically, she

contends appellees failed to show “substantial similarity” between the conditions giving

rise to the absence of prior claims and the conditions on the night of the accident. She

imports the “substantial similarity” standard from Wheeler, in which we acknowledged

that evidence of similar accidents is admissible in strict products liability actions to
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demonstrate the existence of a defect. 862 F.2d at 1407-08. In Wheeler, we explained

that “[b]efore introducing such evidence, the party seeking its admission must show the

circumstances surrounding the other accidents were substantially similar to the accident

involved in the present case.” Id. at 1407. However, we did not address the showing

required for admission of absence-of-claims evidence such as that at issue here. 

Evidence of the absence of prior similar claims will not be admitted unless it

relates to a substantially similar product “'used in settings and circumstances sufficiently

similar to those surrounding the [product] at the time of the accident to allow the jury to

connect past experience with the accident sued upon.'” Klonowski, 17 F.3d at 996

(quoting Walker v. Trice Mfg. Co., 487 F.2d 595, 599 (7th Cir.), cert. denied 415 U.S.

978 (1974)). Accord Espeaignnette, 43 F.3d at 10. A reasonable reading of the record

indicates these elements are satisfied here. First, Honda used a charge warning light

system of the same design in all of its 1981 Accords and in a total of nearly 1.9 million

automobiles between 1973 and 1981. Appellees' append. 286. There is no dispute the

evidence relates to a substantially similar product. Second, the accident occurred while

the Accord was being driven on a highway at night. Although appellant argues

dissimilarity in “settings and circumstances” as regards the product's use, her argument is

overly restrictive and unpersuasive. The appendices reveal no significant dissimilarity

between this car's use and normal use of any other 1981 Honda Accord with a system of

the same design. We find no abuse of discretion. 

B.

Prior to trial, Kinderman performed three experiments: two on an exemplar Accord

and one on an exemplar alternator. He videotaped two of the experiments. At trial, he
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opined Honda’s charge warning system design was neither defective nor unreasonably

dangerous. Appellees' append. 295, 296, 346-47. More specifically, he disputed

appellant’s experts’ claim that an alternator could produce a sustained diminished charge

sufficient to prevent the charge warning light from activating but insufficient to maintain

the battery. Id., at 296-97. To demonstrate the principles underlying his opinion, he

discussed each of his experiments and played portions of the two videotaped experiments. 

He prefaced his discussion by explaining he had never tried to recreate the events leading

up to the accident. Before playing the videotapes, the court twice instructed the jury the

tapes were admitted only to demonstrate Kinderman’s testimony and not as evidence of

what happened on the night of the accident. Id. at 313, 336. Additionally, in the final

jury instructions, the court explained the tapes had been admitted for the limited purpose

of assisting the witness in explaining his opinions and the tapes were not a recreation of

the events involved in the accident. Appellant's append. I at 85 (jury instruction #22). 

Appellant argues the court erred by admitting evidence of Kinderman’s three

demonstrative experiments. A district court has broad discretion in deciding evidentiary

matters including the admissibility of experiments. Four Corners Helicopters v.

Turbomeca, 979 F.2d 1434, 1441-42 (10th Cir. 1992). Accordingly, we will not disturb

the court’s decision unless we have a definite and firm conviction it made a clear error of

judgment or exceeded the bounds of permissible choice in the circumstances. Gilbert v.

Cosco, 989 F.2d 399, 402 (10th Cir. 1993) (quoting McEwen, 926 F.2d at 1553-54).

In Gilbert, we explained generally as follows:

As a general rule, the proponent seeking to admit

out-of-court experiments into evidence must demonstrate a

"’similarity of circumstances and conditions’" between the

tests and the subject of litigation. Jackson v. Fletcher, 647
2

 The “variation” we acknowledged in footnote three of Gilbert does not affect our

resolution of this case; nor have the parties raised it.

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F.2d 1020, 1027 (10th Cir. 1981) (quoting Navajo Freight

Lines v. Mahaffy, 174 F.2d 305, 310 (10th Cir. 1949)). See

also Robinson v. Audi NSU Auto Union Aktiengesellschaft,

739 F.2d 1481, 1484 (10th Cir. 1984); Brandt v. French, 638

F.2d 209, 212 (10th Cir. 1981). "The purpose of this rule is

to prevent confusion of the jury." Robinson, 739 F.2d at 1484

(citing Jackson, 647 F.2d at 1027). A recognized exception to

this rule exists when the experiment merely illustrates

principles used to form an expert opinion. In such instances,

strict adherence to the facts is not required. Four Corners

Helicopters, 979 F.2d at 1442; Robinson, 739 F.2d at 1484;

Brandt, 638 F.2d at 212. See also Nachtsheim v. Beech

Aircraft Corp., 847 F.2d 1261 (7th Cir.1988). Therefore,

experiments which purport to recreate an accident must be

conducted under conditions similar to that accident, while

experiments which demonstrate general principles used in

forming an expert’s opinion are not required to adhere strictly

to the conditions of the accident. Furthermore, "when

experiments do not simulate the actual events at issue, the jury

should be instructed that the evidence is admitted for a limited

purpose or purposes." Robinson, 739 F.2d at 1484 (citing

Brandt, 638 F.2d at 212); Bannister, 812 F.2d at 1270.

989 F.2d at 402.2

The parties dispute whether the experiments were recreations or merely

demonstrations. In his first experiment, Kinderman placed a switch on the alternator of

an exemplar Accord, which allowed him to shut off the alternator. The charge warning

light activated as soon as he disabled the alternator. After shutting off the alternator, he

turned on the headlights and drove until the engine stalled. The experiment demonstrated

the sequence which normally follows the disabling of an alternator. In his second

experiment, conducted at night, he parked the Accord, turned on the headlights, and

disabled the alternator. The engine eventually stalled; however, the headlights remained

on after the engine quit. The second experiment demonstrated the battery produced
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enough charge to run the headlights even when it produced too little charge to run the fuel

pump. In his third experiment, he altered an exemplar alternator by forcing the brushes

apart from the slip rings. He designed his third experiment to demonstrate the alternator

was incapable of producing a sustained diminished charge in the manner suggested by

appellant. 

As in Gilbert, the experiments ultimately were used to assist an expert in

demonstrating principles which formed the basis of his opinion. Kinderman testified he

performed the experiments merely to demonstrate the basic principles underlying his

opinion, and it is clear the court admitted them for the same limited purpose. Indeed, on

three different occasions the court instructed the jury about the limited purpose for which

it could use the Kinderman videotapes. Although the court gave limiting instructions

only as to the videotapes, appellant did not request an additional instruction regarding the

remaining unrecorded demonstrative experiment, either at the time appellees elicited the

testimony from Kinderman or during the initial hearing on the jury instructions. The

court’s failure to give an additional limiting instruction was not reversible error because

appellant failed to request an additional instruction, and she has not shown she suffered

any prejudice given that the jury otherwise was informed the experiments were merely

demonstrative. Cf. Gilbert, 989 F.2d at 404 (holding trial court’s failure to give a limiting

instruction regarding several demonstrative experiments was not reversible error where

appellant failed to request it and “other evidence” informed the jury of the limitations). 

Our review of the parties’ appendices persuades us the distinction between demonstration

and recreation was not so blurred as to create an impermissible risk of unfair prejudice. 

The court did not abuse its discretion. 
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C.

At the close of the defense case-in-chief, appellant asked to admit portions of the

driver’s deposition to rebut appellees’ suggestion that the Accord’s headlights always

remained on, even after the car stalled. Appellant's append. III at 808-10. The court

refused appellant’s request, explaining, in part, that “[a]ll of this could have been put in

during the Plaintiff’s case in chief and I don’t think it’s proper rebuttal.” Id. at 810. 

Citing no authority, appellant argues reversible error. Review is for abuse of

discretion. Marsee v. United States Tobacco Co., 866 F.2d 319, 324 (10th Cir. 1989). 

More specifically, we have explained that “[a] district court possesses considerable

discretion in governing the presentation of evidence, and its decisions will not be

disturbed absent manifest injustice to the parties.” Comcoa v. NEC Telephones, 931 F.2d

655, 663 (10th Cir. 1991). We find no manifest injustice here. 

Appellant’s husband was her primary fact witness. He testified the headlights

dimmed and then went out as he was driving. During the defense case-in-chief, 

Kinderman opined it is impossible for an Accord’s headlights to go out before the engine

quits. Appellant's append. III at 705-06. After the defense case-in-chief, appellant sought

to rebut Kinderman’s opinion by reading the deposition of the driver of the Bronco into

evidence. In his deposition, the driver testified the Accord was parked with its lights off. 

He did not testify the lights went off before the engine died. Even assuming the driver’s

deposition rebutted Kinderman’s testimony, the deposition was available to appellant

during her case-in-chief and, given the nature of appellees’ impeachment of appellant’s

husband, there is no indication that Kinderman’s testimony was unexpected. See

Lubanski v. Coleco Industries, 929 F.2d 42, 47 (1st Cir. 1991) (affirming exclusion of
12

rebuttal evidence that was available to plaintiff during her case-in-chief and not

unexpected). Cf. Marsee, 866 F.2d at 324 (affirming exclusion of rebuttal testimony that

would have been repetitive of issues raised during plaintiff’s case-in-chief). 

III.

We conclude that, as to each of the three evidentiary rulings appellant challenges, the

district court did not abuse its discretion. AFFIRMED.