                   United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT

                                  ___________

                                  No. 96-2448
                                  ___________

Maurice Porchia,                    *
                                    *
           Plaintiff-Appellant,     *
                                    *
The Travelers Insurance             *
Company,                            *
                                    *
           Intervenor Plaintiff     * Appeal from the United States
           Below,                   * District Court for the Western
                                    * District of Arkansas.
      v.                            *
                                    *
Design Equipment Company, a         *
Division of Griffith                *
Laboratories; Stork Protecon,       *
B.V.,                               *
                                    *
           Defendants-Appellees.    *
                               ___________

                    Submitted:    February 12, 1997

                         Filed:   May 15, 1997
                                  ___________

Before BOWMAN and WOLLMAN, Circuit Judges, and BOGUE,1 District Judge.
                               ___________


BOWMAN, Circuit Judge.


     On June 10, 1991, Maurice Porchia lost part of his right arm in an
accident involving a Stork Protecon PMT-41 meat tenderizing




     1
      The Honorable Andrew W. Bogue, United States District Judge
for the District of South Dakota, sitting by designation.
machine.   Porchia asserted negligence claims against both Stork Protecon,
B.V. (Stork), manufacturer of the machine, and Design Equipment Company,
a division of Griffith Laboratories (Griffith), seller of the machine to
Porchia’s employer.    In addition, Porchia sought to have both defendants
held strictly liable for their respective roles as manufacturer and
distributor of an allegedly unreasonably dangerous machine.       The case
proceeded to trial, the jury returned a verdict in favor of Stork and
Griffith, and the District Court2 entered judgment in accordance with the
verdict.   Porchia appeals, and we affirm.


     In 1982, Porchia’s employer, Smoky Hollow Foods, purchased the
tenderizing machine in question and began utilizing it as a stand-alone
unit into which meat product was fed manually.       Several months before
Porchia’s accident, however, Smoky Hollow Foods made numerous modifications
to the machine in order to join the machine with other equipment to form
a ham production line.     These modifications included removal of a metal
hood guard that had served to prevent human contact with the machine’s
blades.


     On the morning of the accident (one week after his employment with
Smoky Hollow Foods began), Porchia received approximately thirty minutes
of training before being given the responsibility to operate the ham
production line for the first time.       That afternoon, some meat became
lodged in the machine, so Porchia proceeded to shut down the equipment on
the ham production line.   Unbeknownst to Porchia, the control panel turned
off other equipment on the line, but it did not shut down the meat
tenderizing machine.   Unaware of nearby metal tools that could be used to
dislodge meat caught in the machine, Porchia tried to




     2
      The Honorable Harry F. Barnes, United States District Judge
for the Western District of Arkansas.

                                    -2-
remove the meat by hand, and his glove became caught in the machine’s
blades, pulling in his right hand and forearm.


      Judgment was entered in favor of the two defendants on both the
negligence and the strict liability claims because the jury found Smoky
Hollow Foods’s conduct to be the sole intervening proximate cause of
Porchia’s injury.    Porchia then filed a motion for a new trial, which the
District Court denied.


      On appeal, Porchia advances the same arguments he made in his motion
for a new trial.    He argues that the District Court erred by: (1) excluding
evidence of subsequent remedial measures; (2) allowing defendants to refer
to   an   Occupational   Safety   and   Health   Administration   (OSHA)   report
concerning Smoky Hollow Foods; (3) permitting references to collateral
sources of compensation; (4) allowing certain defense witnesses to testify
despite defendants’ noncompliance with Federal Rules of Civil Procedure
governing discovery; (5) providing the jury an improper interrogatory; and
(6) mishandling allegations of juror misconduct.


                                         I.


      Because Porchia’s first three arguments concern evidentiary decisions
of the District Court, each decision is reviewed for abuse of discretion.
See American Eagle Ins. Co. v. Thompson, 85 F.3d 327, 333 (8th Cir. 1996)
(stating standard of review).


                                         A.


      Porchia argues that the District Court abused its discretion in
refusing to admit into evidence a postsale, preaccident user’s manual for
the meat tenderizing machine because the manual provided




                                        -3-
evidence of subsequent remedial measures.    The excluded manual, published
in 1991, details safety features added to the PMT-41 model since the time
of Smoky Hollow Foods’s purchase, and it explains safety features present
on the machine as sold to Smoky Hollow Foods in an arguably better fashion
than the manual that accompanied the machine.   Federal Rule of Evidence 407
provides that “evidence of . . . subsequent measures is not admissible to
prove negligence or culpable conduct in connection with the event” giving
rise to the injury.    It is the law of this Circuit, however, that Rule 407
does not require the exclusion of subsequent remedial measures in strict
liability cases.      See, e.g., Burke v. Deere & Co., 6 F.3d 497, 506 (8th
Cir. 1993) (upholding admission of warning decal program and product
modification program in strict liability case as evidence of subsequent
remedial measures relevant to the existence of a product’s dangerous
defect), cert. denied, 510 U.S. 1115 (1994).3   Thus, the District Court was
incorrect to the extent that it relied on Rule 407 to exclude the manual
from evidence.




     3
      In stating this rule, however, we reiterate concerns
stressed by this Court in Burke, regarding the dangers inherent
in an approach that varies the admissibility of subsequent
remedial measures depending on whether an action lies in strict
liability or negligence. See, 6 F.3d at 506 n.11. We again
comment upon our minority position among our sister circuits and
“note that it may indeed be wise to revisit the issue en banc in
a proper case.” Id.; see also Buchanna v. Diehl Mach., Inc., 98
F.3d 366, 372 n.3 (8th Cir. 1996) (Beam, J., dissenting) (noting
that nine circuits have squarely rejected and only one circuit
has partially embraced this Circuit’s application of Federal Rule
of Evidence 407 in strict liability cases); Proposed Amendment to
Federal Rule of Evidence 407, announced Apr. 11, 1997, 65
U.S.L.W. 4252 (Apr. 15, 1997) (providing that “evidence of . . .
subsequent measures is not admissible to prove negligence,
culpable conduct, a defect in a product, a defect in a product’s
design, or a need for a warning or instruction”).

                                     -4-
     Nevertheless, we hold that this was harmless error.4    Obviously, any
error which might arise from the exclusion of evidence is harmless where
the same facts are presented to the jury through other evidence.        See
Monger v. Cessna Aircraft Co., 812 F.2d 402,        407-08 (8th Cir. 1987)
(holding as harmless any error by district court regarding exclusion of
supplement to owner’s manual in strict liability case where same facts were
shown by other evidence).   While the trial court did not allow the manual
into evidence, Porchia’s expert, William H. Ford, was allowed to testify
as to his reliance on the manual in formulating his opinion concerning the
machine’s safety.   In fact, Ford testified that the 1991 manual discussed
the addition to the machine of an emergency stop switch and various warning
decals.   Additionally, he testified as to other safety features he believed
should have been incorporated into the machine’s design when sold in 1982
and as to other safety enhancements made by Smoky Hollow Foods since
Porchia’s accident.   Ford’s testimony covered virtually all of the safety
provisions outlined in the 1991 manual.     Despite the fact that, for the
most part, Ford was not permitted to testify directly about the contents
of the subsequent manual, the jury was fully aware of the feasibility of
the subsequent remedial measures described in the manual and the possible
role of these measures in avoiding Porchia’s injury; thus, any error in
excluding the manual from evidence was harmless.5




     4
      In light of this holding, we need not determine whether the
District Court’s suggestions that the manual would burden the
record and confuse the jury represent an abuse of that court’s
discretion.
     5
      We note, as we have in previous cases, that it is unclear
whether state or federal law governs the admissibility of
subsequent remedial measures in diversity cases. See, e.g.,
Donahue v. Phillips Petroleum Co., 866 F.2d 1008, 1013 n.10 (8th
Cir. 1989). Because we hold that any error in excluding the
manual was harmless, we need not presently answer this question.

                                    -5-
                                         B.


     Porchia    contends   that   the    District    Court   erred   by   allowing
defendants’ expert witness to refer in his testimony to an OSHA report
prepared after an investigation into the working conditions at Smoky Hollow
Foods at the time of Porchia’s injury.        (The report itself was not admitted
into evidence.)   Following the investigation, Smoky Hollow Foods reached
a settlement with OSHA on citations issued for failure to provide adequate
training to Porchia before his assignment to operate the meat tenderizing
machine and for failure to provide the necessary controls to isolate the
machine from all possible energy sources before Porchia attempted to unjam
the machine.   Porchia argues that this OSHA investigation is irrelevant to
this products liability action.6
     Porchia correctly points out that OSHA standards are applicable to
employers and not to product manufacturers and distributors.         Nevertheless,
OSHA standards, investigations, and citations may be relevant in a products
liability action where the fault of the employer is an issue in the case.
See Johnson v. Niagara Mach. & Tool Works, 666 F.2d 1223, 1226 (8th Cir.
1981) (holding OSHA regulation relevant to the issue of employer’s alleged
negligence in products liability action against product’s manufacturer).
Because defendants argued that Smoky Hollow Foods’s negligence was the sole
proximate cause of Porchia’s injury, the




     6
      Porchia’s argument that the OSHA report, titled “INFORMAL
SETTLEMENT AGREEMENT,” should be excluded under Federal Rule of
Evidence 410 as evidence of a negotiated plea between Smoky
Hollow Foods and OSHA is wholly without merit. Rule 410 concerns
the inadmissibility of pleas and related statements offered
“against the defendant who made the plea or was a participant in
the plea discussions.” Neither defendant in this case, however,
was a party to this settlement agreement or involved in its
discussions, nor was the agreement offered against either of
them.

                                        -6-
fault of Smoky Hollow Foods was squarely at issue.      Moreover, because the
OSHA investigation occurred within a month of Porchia’s injury and the ham
production line has since undergone significant changes, information in the
OSHA report was especially probative.       Accordingly, the District Court’s
ruling permitting defendants’ expert to refer to the OSHA investigation in
his testimony was not an abuse of discretion.


                                       C.


     Porchia also alleges that he was prejudiced by references during the
trial to collateral sources.     It is well established “that a plaintiff’s
collateral sources of compensation cannot be inquired into as part of a
defendant’s case, because of the danger that the jury may be inclined to
find no liability, or to reduce a damage award, when it learns that
plaintiff’s loss is entirely or partially covered.”      Moses v. Union Pac.
R.R., 64 F.3d 413, 416 (8th Cir. 1995); see also Patton v. Williams, 680
S.W.2d 707, 708 (Ark. 1984).    As violations of the collateral sources bar,
Porchia cites documents that discuss workers’ compensation and that refer
to Porchia as “claimant.”      These documents, however, which were attached
to the deposition of Richard Chosich, personnel manager for Smoky Hollow
Foods, never were introduced into evidence.       In fact, the only reference
at trial to any of the allegedly improper documents occurred during the
reading   of the deposition testimony of a former Smoky Hollow Foods
employee, Sam Shaffer.   Shaffer was questioned about a report detailing an
interview with Porchia, in which Porchia was referred to as “claimant,”
with no further mention of workers’ compensation.        Because Porchia has
pointed to no other portion of the record that even alludes to collateral
sources and there is no evidence indicating lack of good faith on the part
of defense counsel, we are unwilling to hold that the




                                      -7-
report’s references to “claimant” prejudiced Porchia so severely as to
constitute reversible error.   See Hofer v. Mack Trucks, Inc., 981 F.2d 377,
382-83 (8th Cir. 1992) (determining that references to collateral sources
“were slight, if not downright obscure” and evidence of counsel’s bad faith
was lacking; thus, reversal of jury verdict was not warranted).    Admission
of this testimony was not an abuse of the District Court’s discretion.


                                     II.


     Porchia contends that the District Court abused its discretion in
allowing three defense witnesses to testify despite allegedly substantial
violations of Federal Rules of Civil Procedure 26(b)(4)(A), 26(e), and 35.
Essentially, this argument represents a challenge to the District Court’s
rulings denying Porchia’s motion to strike and exclude witnesses for
failure to comply with Federal Rules of Civil Procedure 26 and 35 and
denying Porchia’s motion for a new trial.   We will grant a new trial based
on allegedly erroneous discovery rulings only if the alleged errors amount
to a gross abuse of discretion and result in fundamental unfairness.     See
Bunting v. Sea Ray, Inc., 99 F.3d 887, 890 (8th Cir. 1996).       “Therefore,
our scope of review is both narrow and deferential.”     Id.
     Porchia claims that Stork violated Rule 26 by failing to provide
adequate and timely information concerning expert witnesses and Rule 35 by
failing to provide a medical examiner’s written report.7       Initially, we
note that Porchia did not enlist the District Court’s assistance to obtain
expert witness information,




     7
      Even though the alleged discovery violations apply only to
Stork, this issue is relevant to both defendants. While Griffith
did not call any witnesses at trial, Griffith did rely on the
testimony of at least one of the challenged witnesses.

                                    -8-
to request additional time to prepare for these expert witness depositions,
to redepose an expert witness when previously undiscovered information
became available, or to obtain a written report from Stork’s vocational
rehabilitation expert.       Moreover, Porchia has not demonstrated how he was
prejudiced by these alleged discovery abuses.             We find that the District
Court’s handling of these discovery issues did not amount to an abuse of
discretion, much less a gross abuse of discretion.              See Bunting, 99 F.3d
at 890 (finding no abuse of discretion concerning discovery rulings where
appellant did not show how he was prejudiced or request the district
court’s help in addressing his discovery concerns).


                                         III.


      Porchia alleges that the District Court erred by giving the jury
Interrogatory No. 1 in lieu of various Arkansas Model Jury Instructions
(AMIs).     A district court has broad discretion in instructing a jury and
will be overturned only if the instructions taken as a whole fail to fairly
and adequately present the law.        See Walton Gen. Contractors, Inc./Malco
Steel, Inc. v. Chicago Forming, Inc., No. 96-1028, slip op. at 12-13 (8th
Cir. Apr. 22, 1997).         As part of the broad discretion afforded district
courts in instructing juries, a court sitting in diversity does not have
to   give    the   precise    instructions    set   out    in   a   state’s   approved
instructions.      See id.; Wright v. Farmers’ Co-Op, 620 F.2d 694, 698 (8th
Cir. 1980) (noting that “unlike Arkansas trial courts, the district court
was not required to follow exactly the applicable AMI”).
      Interrogatory No. 1 provides:


     Do you find from a preponderance of the evidence that there
     was fault on the part of Plaintiff’s employer, Smokey [sic]




                                        -9-
    Hollow Foods, Inc., completely independent of the conduct
    of Stork Protecon, B.V. and Design Equipment Company, a
    division of Griffith Laboratories, which itself was the
    sole proximate cause of Plaintiff’s injury?

This interrogatory fairly and adequately presents Arkansas law concerning
intervening cause.    See Hill Constr. Co. v. Bragg, 725 S.W.2d 538, 540
(Ark. 1987) (explaining that a “jury may be instructed on intervening cause
where a third party, who is not a party to the action, may have been
negligent, just so the instruction makes it clear that the third party’s
negligence must be the sole proximate cause before a verdict for the
defendant is required”); see also Chaney v. Falling Creek Metal Prods.,
Inc., 906 F.2d 1304, 1308 & n.7 (8th Cir. 1990) (stating above rule in
products liability action applying Arkansas law and further noting that
inclusion of employer as a phantom party in interrogatory apportioning
fault would have helped to clarify legal effect of employer’s conduct).
Accordingly, Interrogatory No. 1, especially when viewed, as it must be,
in conjunction with the other interrogatories and instructions, did not
represent an abuse of the District Court’s broad discretion.


                                     IV.
     Finally, Porchia claims that the District Court erred in handling his
allegations of juror misconduct and in denying his motion for a new trial
based on this alleged misconduct.   We review both of these claims for abuse
of discretion.   See Porous Media Corp. v. Pall Corp., No. 96-1552, slip op.
at 22 (8th Cir. Apr. 8, 1997); United States v. Caldwell, 83 F.3d 954, 955
(8th Cir. 1996).



     To support his allegation of juror misconduct, Porchia points only
to an affidavit filed by his brother alleging that on the




                                    -10-
third day of the trial, Porchia’s brother was approached by the husband of
one of the jurors.   The juror’s husband allegedly inquired as to why Smoky
Hollow Foods had not been sued and indicated that his wife, as well as
other jurors, had sought an answer to that question.     Because Porchia’s
allegations did not assert that any extraneous information actually reached
a jury member and because he offered nothing to suggest that he was
prejudiced by the jury’s exposure to any extraneous information, the
District Court acted well within its discretion in determining that these
speculative allegations did not merit further investigation and in denying
Porchia’s motion for a new trial based on this alleged juror misconduct.
See Porous Media, slip op. at 22-23 (“In a civil case, the exposure of
extraneous evidence to the jury ‘mandates a new trial only upon a showing
that the materials are prejudicial to the unsuccessful party.’”) (quoting
Banghart v. Origoverken, A.B., 49 F.3d 1302, 1306 (8th Cir. 1995));
Caldwell, 83 F.3d at 956-57 (concluding that district court was correct in
determining that speculative allegations of improper communications between
jury and a juror’s spouse did not warrant further investigation).


                                     V.


     The judgment of the District Court is affirmed.



     A true copy.


           Attest:


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




                                   -11-
