                                  ____________

                                   No. 95-1106
                                  ____________



Robert H. Burgess,                     *
                                       *
                  Appellant,           *
                                       *
      v.                               * Appeal from the United States
                                       * District Court for the
Suzuki Motor Company, Ltd.;            * Western District of Missouri
U.S. Suzuki Motor Corporation,         *
                                       *
                  Appellees.           *


                                  ____________

                     Submitted:    September 15, 1995

                        Filed:      December 5, 1995
                                  ____________


Before RICHARD S. ARNOLD, Chief Judge, and McMILLIAN and HANSEN,
      Circuit Judges.
                              ____________


McMILLIAN, Circuit Judge.


      Robert H. Burgess appeals from a final judgment entered in the United
States District Court1 for the Western District of Missouri upon a jury
verdict in favor of defendants Suzuki Motor Co., Ltd., and U.S. Suzuki
Motor Corp. (now known as American Suzuki Motor Corp.) (together referred
to as Suzuki) under a theory of strict liability for defective product
design.    For reversal, Burgess argues the district court (1) erred in
refusing to instruct the




     The Honorable Sarah W. Hays, United States Magistrate Judge
for the Western District of Missouri. The matter was tried by
consent of the parties before a United States Magistrate Judge
pursuant to 28 U.S.C. § 636(c)(1).
jury on comparative fault and (2) abused its discretion in admitting into
evidence the testimony of Suzuki’s design engineer, Tsuya Oishi.      For the
reasons discussed below, we affirm the judgment of the district court.


I. BACKGROUND


      Burgess filed this action in the federal district court in May, 1992,
five years after he was injured on May 20, 1987, while riding a 1987 Suzuki
LT 300 EH four-wheel-drive all-terrain vehicle (ATV).     The jurisdiction of
the district court is based on diversity of citizenship, and this case is
governed by Missouri substantive law.


      In April, 1987, Burgess was employed to maintain eighty acres of land
near Clinton, Missouri.     His duties included clearing brush and trees and
mowing pastures.   He was paid wages for his work and also lived in a
trailer on this property.    Burgess’s employer purchased the ATV for him to
use in performing his maintenance duties.     Burgess rode the ATV daily and
never had any handling or stability problems with it before the accident.



      After completing his maintenance work on May 20, 1987, Burgess, along
with a friend, returned to his trailer.     Burgess drank one or two beers and
then realized he left his cigarettes in his shirt pocket back at a brush
pile where he had been working.    He then rode back towards the brush pile
on the ATV over a path which he had previously ridden many times without
experiencing any control problems.    When Burgess attempted to cross a small
ditch, the ATV flipped over on top of him and Burgess sustained injuries.




                                      -2-
      After   a   four-day trial on the sole remaining claim of strict
liability for defective design,2 a jury rendered a verdict in favor of
Suzuki.    Burgess’s post-trial motion for new trial was denied by the
district court.   Burgess v. Suzuki Motor Corp., No. 92-0457-CV-W-2-BD (W.D.
Mo. Dec. 1, 1994) (order).    This appeal followed.


II. DISCUSSION


A. Appellate Jurisdiction


      As a threshold matter, Suzuki raises as an issue the scope of this
court's jurisdiction.   In the notice of appeal Burgess designated the order
denying the motion for new trial,3 not the judgment entered upon the jury
verdict.   Suzuki argues this court can review only the order denying the
motion for new trial.       Burgess argues that, although he should have
specified the judgment in his notice of appeal, because the appeal
information form filed with his notice of appeal lists specific errors in
jury instructions and evidentiary rulings, his intent to appeal from the
judgment in question is apparent.


      The requirement of Federal Rule of Appellate Procedure 3(c) that a
notice of appeal “designate the judgment, order, or part thereof appealed
from” is a jurisdictional prerequisite of the appellate court.    Klaudt v.
United States Dep’t of Interior, 990 F.2d 409, 411 (8th Cir. 1993)
(Klaudt); Berdella v. Delo, 972 F.2d 204, 208 (8th Cir. 1992) (Berdella).
Although a court may construe




      On July 11, 1994, one week before trial, the district court
granted Suzuki’s motion for summary judgment in part and dismissed
Burgess’s additional claims of negligent advertising, negligent
failure to warn, and strict liability for failure to warn.

      Burgess’s notice of appeal specifies plaintiff appeals from
the order denying plaintiff’s motion for new trial; said order
being filed December 1, 1994 (the date the order denying a new
trial was entered); and a copy of said order denying motion for new
trial is attached hereto and incorporated herein by reference.

                                    -3-
the Rules liberally in determining whether they have been complied with,
a court may not waive the jurisdictional requirement of Rule 3 if it finds
that it has not been met.       Torres v. Oakland Scavenger Co., 487 U.S. 312,
317 (1988) (where the notice of appeal under consideration failed to
designate   the    specific     individual      seeking   to    appeal).        However,
“[p]ermitting     imperfect    but    substantial   compliance    with     a   technical
requirement is not the same as waiving the requirement altogether as a
jurisdictional threshold.”       Id. at 315-16.


      The   Eighth   Circuit     traditionally      construes    notices       of   appeal
liberally, but the intent to appeal the judgment in question must be
apparent and there must be no prejudice to the adverse party.              Klaudt, 990
F.2d at 411;    Berdella, 972 F.2d at 207.          This court, in determining the
scope of this appeal, can rely on both the notice of appeal and appeal
information form.     See McAninch v. Traders Nat'l Bank, 779 F.2d 466, 467
n.2 (8th Cir. 1985) (intent to appeal an order was apparent from the
procedural history of the case, the caption on the notice of appeal, and
the inclusion of the order on the appeal information form), cert. denied,
476 U.S. 1182 (1986).         Burgess’s listing of the specific errors on the
appeal information form shows that he intended to appeal the judgment and
not merely the order denying the motion for new trial.               Suzuki, in its
brief on appeal, conditionally responded on the merits to all issues raised
by Burgess in the event this court determined it had jurisdiction of an
appeal from the judgment.            Suzuki has not demonstrated any prejudice
resulting from our consideration of an appeal taken from the judgment.                  We
hold that Burgess has complied with Fed. R. App. P. 3, and we have
jurisdiction of an appeal of the judgment entered upon the jury verdict.
For this appeal, we will limit our review to those errors listed in the
appeal information form.4




4
 During oral argument, Burgess's counsel agreed that these are the
only issues on appeal.

                                          -4-
B. Comparative Fault Jury Instruction


      Suzuki originally pled comparative fault as an affirmative defense
to Burgess’s allegations of defective product design.   After the close of
evidence and at the final instruction conference, Suzuki withdrew, over the
objections of Burgess, its comparative fault jury instruction and added an
affirmative converse instruction.


      Burgess argues that after Suzuki pled and introduced evidence as to
the fault of Burgess, the district court erred in not instructing the jury
on comparative fault because Burgess did not agree to the withdrawal of the
comparative fault jury instruction.


      Suzuki argues that any claim of instructional error has not been
preserved for appeal because Burgess did not proffer his own correct
comparative fault instruction.      Suzuki argues Burgess’s submission of
instructions with comparative fault verdict directors and a comparative
fault verdict form was not enough.    Even if the claim of error has been
preserved for appeal, Suzuki argues that Burgess, as the plaintiff, was not
entitled to such an instruction because under Missouri law comparative
fault in a strict product liability case is a statutory defense.   Mo. Rev.
Stat. § 537.765.2 (1994) states “[d]efendant may plead and prove the fault
of the plaintiff as an affirmative defense.”    Furthermore, Suzuki argues
that, before Burgess would be entitled to an instruction, Burgess had to,
and did not, show that (1) the requested instruction supported his theory
of the case, (2) he introduced evidence to support it, and (3) the proposed
instruction was legally correct.


      In their briefs and in oral argument before this court both parties
have assumed the doctrine of comparative fault applies to this strict
product liability case.   However, the accident occurred on May 20, 1987.
The effective date of the Missouri comparative fault statute for strict
product liability cases is July 1, 1987.




                                    -5-
Mo. Rev. Stat. § 537.765 (1994).    Prior to July 1, 1987, Missouri did not
apply comparative fault in strict product liability cases.    See Lippard v.
Houdaille Indus., Inc., 715 S.W.2d 491 (Mo. 1986) (banc) (Lippard).
Because this accident occurred prior to the July 1, 1987, effective date
of Mo. Rev. Stat. § 537.765, the applicable law for this issue is governed
by Lippard.     See Boyer v. Eljer Mfg., Inc., 830 S.W.2d 535, 538 (Mo. Ct.
App. 1992); Johnson v. Hyster Co., 777 S.W.2d 281, 284-85 (Mo. Ct. App.
1989); see also Egelhoff v. Holt, 875 S.W.2d 543, 547 (Mo. 1994) (banc).
Therefore, we hold that the district court did not err in not instructing
the jury on comparative fault.


C. Testimony of Tsuya Oishi


         Burgess argues that the district court abused its discretion in
admitting into evidence the testimony of Suzuki’s design engineer, Tsuya
Oishi.    Burgess argues that this testimony related to the conduct of Suzuki
in the design and testing of the ATV in question which is irrelevant in a
strict liability defective product design case.        Specifically, Burgess
challenges the admission of testimony regarding (1) why Suzuki selected a
short travel, stiffer suspension; (2) Suzuki’s careful, extensive design
process; (3) Suzuki’s design tests; and (4) why Suzuki did not use
mathematical modeling in the design process.


         Suzuki argues that Oishi’s testimony provided background information
about the product and why it was not unreasonably dangerous.          If not
admissible for this reason, Suzuki argues that Burgess injected this line
of testimony into the case because Burgess’s expert, David Renfroe,
testified regarding the relative merits of design alternatives and the
availability of computer




                                      -6-
modeling to prevent the alleged defect.5    Suzuki maintains that Oishi’s
testimony regarding design trade-offs is relevant to prove absence of a
defective design.


      “In ruling on the admissibility of evidence, the trial judge has a
wide discretion, and his [or her] decisions will not be disturbed unless
there is a clear and prejudicial abuse of discretion.”     Roth v. Black &
Decker, U.S., Inc., 737 F.2d 779, 783 (8th Cir. 1984) (citations omitted).



      To recover under a theory of strict liability in tort for defective
design, Missouri law requires a party to prove, inter alia, that the
product when sold was in a defective condition unreasonably dangerous when
put to a reasonably anticipated use, and the product was used in a manner
reasonably anticipated.6   Linegar v. Armour of America, Inc., 909 F.2d
1150, 1152 (8th Cir. 1990) (applying Missouri law).   Design trade-offs are
relevant in determining whether the product was unreasonably dangerous when
put to a reasonably anticipated use.   Id. at 1154.   Oishi testified about
various considerations that went into the design of the ATV model in
question and its suspension system.    Oishi’s testimony was also relevant
to counter the testimony of Burgess’s expert, Renfroe, concerning Suzuki’s
allegedly negligent design process and selection of the suspension system
for this ATV model.


      Therefore, we hold that the district court did not abuse its
discretion in admitting the testimony of Oishi.




     Suzuki argues Oishi’s testimony established that the
suspension system advocated by Renfroe was actually on Suzuki’s
sport or racing ATV model, and not on this ATV which was designed
as a “utility” or “workhorse” vehicle.

     Missouri has codified the strict liability causes of action
for claims that accrue after July 1, 1987.       Mo. Rev. Stat.
§ 537.760 (1994).

                                   -7-
III. CONCLUSION


     For the reasons discussed above, the judgment of the district court
is affirmed.


     A true copy.

           Attest:

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




                                   -8-
