                                                                              F I L E D
                                                                       United States Court of Appeals
                                                                               Tenth Circuit
                        UNITED STATES COURT OF APPEALS
                                                                               MAR 7 1997
                               FOR THE TENTH CIRCUIT
                                                                          PATRICK FISHER
                                                                                   Clerk

    DANNY MEYERS,

                Plaintiff-Appellant,

    v.                                                     No. 96-5082
                                                       (D.C. No. 94-C-342-K)
    HAYSSEN MANUFACTURING                                   (N.D. Okla.)
    COMPANY, also known as Hayssen Mfg.
    Co., a corporation,

                Defendant-Appellee,

    and

    FLUOR CONSTRUCTORS
    INTERNATIONAL, INC., formerly
    known as Fluor Constructors, Inc., a
    corporation; FLUOR DANIEL, INC., a
    corporation, formerly known as Fluor
    Engineers, Inc.,

                Defendants.


                               ORDER AND JUDGMENT*


Before PORFILIO, ANDERSON, and BRISCOE, Circuit Judges.




*
        This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
       After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1.9. The case is therefore

ordered submitted without oral argument.

       Plaintiff Danny Meyers brought a manufacturer’s products liability action for

injuries he sustained when his hand was pulled into a wrapping machine manufactured by

defendant Hayssen Manufacturing Co. Following a jury trial, the jury found in

defendant’s favor. Plaintiff appeals, claiming error in the jury instructions. He also

challenges the district court’s award of certain costs and fees to defendant. Federal

jurisdiction is based on the diversity of the parties. See 28 U.S.C. § 1332. We have

jurisdiction under 28 U.S.C. § 1291.

                                       Jury instructions

       “In a diversity case the substance of a jury instruction is a matter of state law, but

its grant or denial is a procedural matter controlled by federal law.” Staley v.

Bridgestone/Firestone, Inc., No. 95-1265, 1997 WL 55944, at * 3 (10th Cir. Feb. 12,

1997). An appeal of a trial court’s jury instructions requires this court to consider

whether the instructions correctly stated the applicable law and provided the jury with a

sufficient understanding of the issues and standards involved in the case. Rios v. Bigler,

67 F.3d 1543, 1549 (10th Cir. 1995). “An error in jury instructions will mandate




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reversal . . . only if the error is determined to have been prejudicial after reviewing the

record as a whole.” King v. Unocal Corp., 58 F.3d 586, 587 (10th Cir. 1995) (quotation

omitted).

       In this case, the record provided does not include all of the instructions given to

the jury. Although we are unable to evaluate the instructions in the broad context of the

jury trial, we can determine whether the challenged instructions misstate the law.

       Plaintiff first objects to the instruction titled “Unreasonably Dangerous - Defined”

because it permitted the jury to consider whether plaintiff was a “knowledgeable user” of

the machine, without defining “knowledgeable user.” Plaintiff alleges that the term

“knowledgeable user” introduced a confusing and misleading concept into the case which

unfairly prejudiced plaintiff. Under Oklahoma law, however, both the expertise of the

user of the product and the foreseeability of use are relevant. See Hutchins v. Silicone

Specialties, Inc., 881 P.2d 64, 67 (Okla. 1994) (manufacturer was not required to foresee

that professional users of product would fail to read warnings, and then use product in a

manner expressly warned against).

       We next consider plaintiff’s objection to the instruction titled “Intervening

Cause - Definition.” Plaintiff concedes that an intervening cause instruction was

appropriate, but objects to the term “defendant’s act,” used in the instruction, instead of

“defect in a product.” Plaintiff points out that in a strict liability action, liability is based

on the defective product itself. While we agree that the reference to “defendant’s act”


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was imprecise, a minor imprecision in a single instruction does not necessarily establish

reversible error. See Wheeler v. John Deere Co., 935 F.2d 1090, 1103 (10th Cir. 1991)

(in context of instructions as a whole, no error in substituting the word “unsafe” for the

term “unreasonably dangerous”).

       Plaintiff contends that the jury instruction titled “Foreseeability - definition” was

erroneous. He asserts that the instruction required the jury to find in defendant’s favor

unless defendant had anticipated the specific situation that resulted in plaintiff’s injuries.

He also claims that foreseeability is a concept pertinent only to negligence claims, not to

strict liability claims.

       The instruction did not state that defendant must have anticipated the specific

situation that occurred here in order to be liable for a defective product. Furthermore,

foreseeability was relevant to this strict products liability action because under Oklahoma

products liability law, a manufacturer is required to anticipate all foreseeable uses of its

product. Daniel v. Ben E. Keith Co., 97 F.3d 1329, 1334 (10th Cir. 1996); Smith v.

United States Gypsum Co., 612 P.2d 251, 254 (Okla. 1980); see also Saupitty v. Yazoo

Mfg. Co., 726 F.2d 657, 659 (10th Cir. 1984) (under Oklahoma law, manufacturer is

liable if modification of its product was foreseeable).

       Plaintiff next contends that the instruction titled “Substantial Change in Product”

should not have been given on the ground that it was superfluous to the instructions on




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causation. We cannot evaluate this argument because we do not have all of the

instructions given to the jury.

       Plaintiff also objects to the instruction on substantial change in product on the

grounds that it relieved defendant of liability unless the modifications to the wrapping

machine were specifically foreseeable, and it did not instruct that the modifications must

have contributed to plaintiff’s injuries. The instruction did not state that the

modifications must have been specifically foreseeable. Moreover, foreseeability is

pertinent to whether a manufacturer will be held liable even though its product was

changed by the user. See Smith, 612 P.2d at 254 (manufacturer must anticipate all

foreseeable uses of product); cf. Fields v. Volkswagen of Am., Inc., 555 P.2d 48, 56-57

(Okla. 1976) (in products liability action, to determine whether plaintiff’s use of product

was abnormal, court must evaluate whether use was foreseeable by manufacturer). We

cannot evaluate the remaining challenge because we do not have all of the instructions the

jury received.

       We find no error in the challenged jury instructions, based on the record provided.

Therefore, we decline to disturb the jury’s verdict.

                            Costs and fees taxed against plaintiff

       Finally, plaintiff contests the district court’s order, entered pursuant to Rule 54(d)

of the Federal Rules of Civil Procedure, imposing on him certain costs incurred by

defendant. Of the total $4,761.95 awarded, plaintiff objects to $2,113.59 for copies of


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papers and $40.00 for a subpoena service fee, claiming the person served was a stranger

to the litigation.

       Federal law, not Oklahoma state law, controls the assessment of costs in this

diversity case. Gobbo Farms & Orchards v. Poole Chem. Co., 81 F.3d 122, 123 (10th

Cir. 1996). The district court’s award of costs is reviewed for an abuse of discretion.

Merrick v. Northern Natural Gas Co., 911 F.2d 426, 434 (10th Cir. 1990). 28 U.S.C.

§ 1920(1) & (4) authorize recovery by the prevailing party of marshal’s fees and “copies

of papers necessarily obtained for use in the case.” Costs must be both “necessarily

obtained” and reasonable. U.S. Indus., Inc. v. Touche Ross & Co., 854 F.2d 1223, 1245

(10th Cir. 1988).

       The district court reviewed de novo the clerk’s order for costs, affirming the

clerk’s order, except for the expense for daily transcripts, which was disallowed.

According to defendant, the challenged subpoena fee was for service on a representative

of plaintiff’s employer to obtain documents. We determine that the district court did not

abuse its discretion in awarding the subpoena service fee.

       Although the record does not make clear how the district court arrived at the total

for the cost of copies, the district court apparently determined that the allowed copying

costs were “reasonably necessary.” See Jones v. Unisys Corp., 54 F.3d 624, 633 (10th

Cir. 1995) (noting a preference for “more explanation” of copying costs, but affirming

district court’s order to disallow copying costs as not “reasonably necessary”).


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Accordingly, we apply “the presumption favoring award of statutorily authorized costs,”

id., and conclude that the district court’s costs award does not constitute an abuse of

discretion.

       The judgment of the United States District Court for the Northern District of

Oklahoma is AFFIRMED.



                                                         Entered for the Court



                                                         Stephen H. Anderson
                                                         Circuit Judge




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