                                         PUBLISH

                        UNITED STATES COURT OF APPEALS
Filed 10/2/96
                                     TENTH CIRCUIT




 MARCIA C. DANIEL and DOUGLAS
 DANIEL, individually and as husband and
 wife,

                Plaintiffs-Appellants,                      No. 95-6258

          v.

 BEN E. KEITH COMPANY,

                Defendant-Appellee.




               APPEAL FROM THE UNITED STATES DISTRICT COURT
                         FOR THE W.D. OKLAHOMA
                           (D.C. No. CIV-94-1077-C)


D. Renee Hildebrant (Michael E. Smith, also of Nelson, Sherwood & Brown, with her on
the briefs), Oklahoma City, Oklahoma, for Plaintiffs-Appellants.

Tom L. King (Phillip P. Owens II, also of King, Roberts & Beeler, with him on the brief),
Oklahoma City, Oklahoma, for Defendant-Appellee.



Before KELLY, ENGEL* and LOGAN, Circuit Judges.



      *
         The Honorable Albert J. Engel, Senior United States Circuit Judge, United States
Court of Appeals for the Sixth Circuit, sitting by designation.
LOGAN, Circuit Judge.



       Plaintiffs Marcia and Douglas Daniel brought this diversity action for damages

against defendant Ben E. Keith Company alleging that an inadequate warning rendered

defendant’s “Keith’s All-Purpose Bleach” defective under Oklahoma manufacturer’s

products liability law. Marcia Daniel, a former restaurant worker, claims she suffers from

Reactive Airway Disfunction Syndrome (RADS) as a consequence of a coworker

mistakenly using defendant’s bleach to clean deep fat fryers at the restaurant where they

were employed.

       Marcia Daniel worked as a section leader at Casa Bonita Restaurant, primarily

cooking and supervising new employees. On the day of her alleged injuries, in July 1992,

she prepared tortillas in a deep fat fryer, then continued with other responsibilities. Her

coworker, Markus Schroeder, was attempting to clean three deep fat fryers when instead

of using fryer cleaner he mistakenly poured in and boiled approximately one-half gallon

of defendant’s bleach in each fryer. Marcia Daniel suffered exposure to chlorine gas as a

result. Her treating physician identified the chlorine gas emitted from the fryers as the

cause of her RADS condition.

       Marcia Daniel continued working full-time at Casa Bonita through 1992, but

thereafter was only able to work half-time and could not do kitchen work. Casa Bonita

retained her as an employee performing office and personnel work and gift shop procure-

                                            -2-
ment until the restaurant closed approximately a year later. Plaintiffs contend that Marcia

Daniel’s condition forecloses her from obtaining other employment; they produced

evidence of lifestyle changes caused by her condition. Douglas Daniel testified about his

wife’s condition and the effect on their lifestyle and finances. In their suit they alleged

that defendant’s bleach was defective because its label failed to adequately warn of the

risks associated with using its product, and that this defect caused their injuries. Defen-

dant responded that Schroeder’s negligence was the sole cause of the alleged injuries.

The jury returned a defense verdict.

       On appeal, the Daniels argue that the district court (1) erred in refusing to give a

heeding presumption jury instruction, and abused its discretion in (2) giving a preexisting

condition instruction, (3) instructing that ordinary users of defendant’s bleach would

know of the danger of using it in this fashion, (4) refusing to allow plaintiffs to use a

medical records summary exhibit, and (5) commenting to the jury on a witness’ relation-

ship to defendant.

                                              I

       Plaintiffs argue that the district court erred in refusing to give a “heeding presump-

tion” jury instruction. In diversity cases, federal law controls determinations granting or

denying proposed instructions while state law governs the substance of jury instructions.

Dillard & Sons Constr., Inc. v. Burnup & Sims Comtek, Inc., 51 F.3d 910, 915 (10th Cir.

1995). We review de novo the district court’s application of Oklahoma law. See Romero


                                             -3-
v. International Harvester Co., 979 F.2d 1444, 1448 (10th Cir. 1992). Federal Rules of

Evidence 301 and 302 govern the effect of presumptions in civil actions. Rule 302

provides that “[i]n civil actions and proceedings, the effect of a presumption respecting a

fact which is an element of a claim or defense as to which State law supplies the rule of

decision is determined in accordance with State law.”

       Plaintiffs contend that Oklahoma law requires an instruction in failure to warn

cases that it is presumed the plaintiff would have read and heeded an adequate warning;

that the burden of proof is on the party seeking to overcome the presumption; and that the

district court erred in applying Fed. R. Evid. 301, which imposes on the defendant only

the burden of production of evidence to rebut the presumption.

       In Oklahoma, a party proceeding under a strict products liability theory--referred to

as manufacturer’s products liability--must establish three elements: (1) that the product

was the cause of the injury, (2) that the defect existed in the product at the time it left the

manufacturer, retailer, or supplier’s control, and (3) that the defect made the product

unreasonably dangerous. Kirkland v. General Motors Corp., 521 P.2d 1353, 1363 (Okla.

1974). The failure to adequately warn of a known potential risk renders a product

defective; see Cunningham v. Charles Pfizer & Co., 532 P.2d 1377, 1380-83 (Okla.

1974); Restatement (Second) of Torts § 402A (1964); however, the plaintiff must

establish that the failure to warn caused the injury. Cunningham, 532 P.2d at 1382. In

this regard Oklahoma recognizes a rebuttable presumption that plaintiff would have read


                                              -4-
and heeded an adequate warning. Thus, in the absence of evidence rebutting the pre-

sumption, a plaintiff need not produce evidence that she would have acted differently if

an adequate warning had been given. But once the opposing party meets its burden to

come forward with evidence rebutting the presumption, the presumption disappears. See,

e.g., Clark v. Continental Tank Co., 744 P.2d 949 (Okla. 1987) (plaintiff admitted that

warning would not have alerted him to something he did not already know, thus, he was

not entitled to a heeding presumption); Cunningham, 532 P.2d at 1382-83 (defendant

overcame presumption plaintiff would have heeded adequate warning about polio vaccine

with evidence that Oklahoma was epidemic state and that without vaccine plaintiff faced

“considerable risk” of contracting polio).

       The cases are consistent with the Oklahoma Evidence Code.

             Except when otherwise provided by law, when the basic fact of a
       presumption has been established as provided in Section [2]302 of this
       Code:

              1. If the basic fact has any probative value of the existence of the
       presumed fact, the presumed fact shall be assumed to exist and the burden
       of persuading the trier of fact of the nonexistence of the presumed fact rests
       on the party against whom the presumption operates; or

               2. If the basic fact does not have any probative value of the exis-
       tence of the presumed fact, the presumed fact is disregarded when the party
       against whom the presumption operates introduces evidence which would
       support a finding of the nonexistence of the presumed fact and the existence
       of the fact otherwise presumed is then determined from the evidence in the
       same manner as if no presumption had been operable in the case.

12 Okla. Stat. Ann. § 2303 (footnote omitted).


                                             -5-
       Here, the basic fact that plaintiffs contend should “giv[e] rise to a presumption” is

the alleged inadequate warning on defendant’s bleach. 12 Okla. Stat. Ann. § 2301(2)

(defining basic fact). An inadequate warning, however, is not necessarily probative of the

presumed fact--that an adequate warning would have been heeded. A reasonable person

might assume the risk, as in Cunningham, or be shown to have not read the warning, as in

Clark. Thus, under Oklahoma law the party against whom the presumption operates, here

defendant, may rebut the presumption with evidence of the nonexistence of the presumed

fact. Section 2303 recognizes that the presumption operates to “allocat[e] . . . the burden

of producing evidence of the non-existence of the presumed fact [that an adequate

warning would be heeded] to the party against whom the presumption operates.” Evid.

Subcom. Note § 2303.

       Defendant rebutted the presumption with Schroeder’s testimony that a different

warning on defendant’s bleach would have made no difference because that morning he

was in a hurry and did not look at the label. He inadvertently used the bleach instead of

the fryer cleaner which he had been trained to use. A different warning label may not

have altered Schroeder’s action. Thus, any presumption that a different warning would

have been heeded disappeared, and plaintiffs continued to carry the burden of proving

that the allegedly inadequate warning caused her injury. The district court correctly

applied Oklahoma law in refusing to give the heeding presumption instruction.1

       1
           Based on this holding, we need not address plaintiffs’ related argument that
                                                                                (continued...)

                                             -6-
                                              II

       Plaintiffs argue that the district court abused its discretion by instructing the jury

on the measure of damages if the jury found that Marcia Daniel had a preexisting

condition aggravated by injuries allegedly suffered from exposure to defendant’s bleach.2

Plaintiffs allege that the record did not support the instruction and telegraphed to the jury

that the court had concluded that Marcia Daniel suffered from a preexisting lung condi-

tion; that the instruction invited the jury to deny recovery altogether; and that because

defendant’s theory at trial was that Marcia Daniel suffered no injury, the instruction

confused and misled the jury as to the issues they were to determine. Defendant responds

       1
        (...continued)
refusal of the heeding presumption jury instruction, coupled with the general verdict
form, precludes a determination of the basis for the jury’s decision.
       2
           The pertinent instruction reads:

       MEASURE OF DAMAGES-AGGRAVATION OF PRE-EXISTING
       CONDITIONS

               A person who has a condition or disability at the time of an injury is
       entitled to recover damages for any aggravation of such pre-existing
       condition or disability directly caused by the injury. This is true even if the
       person’s condition or disability made him or her more susceptible to the
       possibility of injury than a normally healthy person would have been, and
       even if a normally healthy person probably would not have suffered any
       substantial injury.

              If you find plaintiff has a pre-existing condition or disability and it
       was aggravated, the damages as to such condition or disability are limited to
       the additional injury caused by the aggravation.

I R. tab D at 19.

                                              -7-
that the instruction was proper because the evidence at trial included medical information

supporting a finding that Marcia Daniel’s condition was related to her other medical

problems.

       Although we review de novo legal objections to the jury instructions, when the

objection concerns the effect of the instruction on the jury we review instead for abuse of

discretion. See United States v. Lee, 54 F.3d 1534, 1536 (10th Cir.), cert. denied, 116

S. Ct. 247 (1995). The medical evidence showed that Marcia Daniel suffered from prior

health problems, including an earlier allergic reaction to an antibiotic that caused a rash

and breathing problems. The evidence also showed that although the chlorine bleach

exposure occurred in July 1992, after the roof at Casa Bonita was tarred in December

1992 Marcia Daniel experienced shortness of breath and coughing, and some of her

pulmonary function tests were lower than in the weeks just before the roof work. This

evidence is consistent with a preexisting condition or predisposition to respiratory

problems. The district court did not abuse its discretion by including the preexisting

condition language in this damage instruction.

                                              III

       Plaintiffs contend that the district court erred by including in the jury instructions

the following sentence from the Oklahoma Uniform Jury Instructions: “No warning or

instruction is required if the particular danger would be apparent to an ordinary user from

the nature of the product itself or from other information known to the user.” I R. tab D


                                             -8-
at 13. Plaintiffs contend that there was no evidence that “an ordinary consumer would

know the specific result of mixing all-purpose bleach with cooking oil and boiling water,”

and that this “particular danger” should have appeared in the warning. Brief in Chief of

Appellants at 32-33.

       We do not read the Oklahoma cases as requiring warning labels to identify so

specifically the consequences of misusing a product. Oklahoma law provides that when a

particular danger exists as a consequence of a foreseeable use, and the danger is not

obvious or generally known, a duty to warn arises. See Duane v. Oklahoma Gas & Elec.

Co., 833 P.2d 284, 286 (Okla. 1992).3 “A manufacturer must anticipate all foreseeable

uses of his product,” Smith v. United States Gypsum Co., 612 P.2d 251, 254 (Okla.

1980), not all possible uses. The evidence did not show that coworker Schroeder used

bleach in a foreseeable manner on the morning in question.




       3
           The duty to warn does not arise for risks associated with unanticipated uses.

       A product is not defective when it is safe for normal handling and
       consumption and there is no duty to warn where the product is used in an
       unlikely, unexpected or unforeseeable manner. Only where the seller has
       reason to anticipate that danger may result from a particular use, may he be
       required to give adequate warning of the danger, and a product sold without
       such warning is in a defective condition.

Duane v. Oklahoma Gas & Elec. Co., 833 P.2d 284, 286 (Okla. 1992) (quoting
Restatement (Second) of Torts § 402A cmt. h).


                                             -9-
       Marcia Daniel acknowledged that she would not pour bleach into a hot skillet or

boiling water, and that Schroeder had been trained to clean the fryers with fryer cleaner.

She evidently turned on a fan to ventilate because of the chlorine odor. Although Marcia

Daniel did not testify that she knew of the risks of RADS from breathing chlorine fumes,

her testimony established a general awareness not to use bleach in the way her coworker

accidently did. The evidence supported giving the instruction.




                                           - 10 -
                                               IV

       Plaintiffs contend that the district court erred in refusing to allow their counsel to

use a medical records summary in cross-examining defendant’s expert witness and in

closing arguments, a ruling we review for abuse of discretion. Graham v. Wyeth Labs,

906 F.2d 1399, 1401 (10th Cir.), cert. denied, 498 U.S. 981 (1990).

       Plaintiffs’ counsel attempted to use at trial a summary of eighteen one-page

pulmonary function test results. The district court refused to allow use of the summary

because defense counsel had no opportunity to review it. Plaintiffs contend that defense

counsel had timely received copies of all medical records and had an opportunity to

review the summary during the lunch hour, and that the ruling prejudiced both their

ability to effectively cross-examine defendant’s expert and to demonstrate in closing

argument that plaintiff suffered an injury.

       The use of summaries is addressed at Fed. R. Evid. 1006, as follows:

              The contents of voluminous writings, recordings, or photographs
       which cannot conveniently be examined in court may be presented in the
       form of a chart, summary, or calculation. The originals, or duplicates, shall
       be made available for examination or copying, or both, by other parties at
       reasonable time and place. The court may order that they be produced in
       court.

Summaries must be accurate and nonprejudicial. Summaries not offered as evidence

should be used only with a limiting instruction stating that the summary itself is not

evidence. Gomez v. Great Lakes Steel Div., Nat’l Steel Corp., 803 F.2d 250, 257 (6th

Cir. 1986).

                                              - 11 -
       The documentary evidence here involved was not voluminous, was already

admitted and available for use, and was in fact used by defense counsel without undue

difficulty. Plaintiffs compiled the summary to facilitate cross-examination and closing

argument on a specific area, and as such it was more pedagogical than evidentiary. The

district court had earlier instructed counsel for both sides to allow adequate time for

opposing counsel to review exhibits, and we cannot say that defense counsel received an

adequate opportunity to review the summary for accuracy. Further, the information

contained in the summary primarily addressed plaintiffs’ damages--not defendant’s

liability--and the jury did not reach the damages issue. Under these circumstances we

conclude plaintiffs suffered no prejudice by the ruling.

                                              V

       Finally, plaintiffs allege the district court incorrectly instructed the jury concerning

a witness’ relationship to defendant. We review evidentiary rulings to determine if the

district court abused its discretion in limiting the scope of a witness’ testimony. See

Messina v. Kroblin Transp. Sys., Inc., 903 F.2d 1306, 1310 (10th Cir. 1990).

       Plaintiffs read into evidence portions of Leon Ewell’s deposition pursuant to Fed.

R. Evid. 804. Ewell is an employee of Cello Corporation, which labels and packages

defendant’s bleach, and which assumed the defense in the instant case. Defendant

voluntarily produced Ewell for a deposition, representing that he was the most knowl-

edgeable person available to testify about the bleach label.


                                            - 12 -
       The district court instructed the jury that Ewell worked for Cello Corporation and

not for defendant. Plaintiffs argue that the district court incorrectly applied Oklahoma

law in disallowing Ewell’s testimony as an admission of a party-opponent under Fed. R.

Evid. 801(d)(2). Rule 801(d)(2)(D) includes as an admission against a party-opponent, “a

statement by the party’s agent or servant concerning a matter within the scope of the

agency or employment, made during the existence of the relationship.” Plaintiffs contend

that because Cello is in the distribution chain for the bleach, under Oklahoma law Cello

could be held liable and its employees were agents of defendant.

       Plaintiffs, however, neither pleaded nor proved an agency relationship between

defendant and Cello. Although Oklahoma products liability law might impose liability

against Cello for its role in the chain of distribution, a plaintiff may not circumvent the

required proof of agency because opposing counsel obtains the cooperation of a nonparty

for purposes of facilitating discovery. The party asserting the existence of an agency

relationship carries the burden of proving the relationship exists. Atchison, T. & S.F. Ry.

v. Bouziden, 307 F.2d 230, 233 (10th Cir. 1962). The district court did not abuse its

discretion by clarifying for the jury that Ewell worked for Cello and not defendant. This

instruction fairly limited the use of Ewell’s testimony in a manner consistent with the

evidence already presented to the jury. See Hinds v. General Motors Corp., 988 F.2d

1039, 1046 (10th Cir. 1993).

       AFFIRMED.


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