UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

HERMAN HUMPHRIES; TERESA G.
HUMPHRIES,
Plaintiffs-Appellees,

and

AMERICAN TRANSPORTATION SERVICES,
INCORPORATED,
Intervenor-Plaintiff,
                                                               No. 98-1970
v.

MACK TRUCKS, INCORPORATED,
Defendant-Appellant.

BOBBY COWAN; DEWAYNE PITTS;
MATLACK INCORPORATED,
Movants.

Appeal from the United States District Court
for the District of South Carolina, at Spartanburg.
G. Ross Anderson, Jr., District Judge.
(CA-97-1945-7-13)

Argued: September 23, 1999

Decided: October 13, 1999

Before MURNAGHAN and MOTZ, Circuit Judges, and
GOODWIN, United States District Judge for the
Southern District of West Virginia, sitting by designation.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________
COUNSEL

ARGUED: William Alexander Coates, David L. Moore, Jr., LOVE,
THORNTON, ARNOLD & THOMASON, P.A., Greenville, South
Carolina, for Appellant. Francis Patrick Hubbard, UNIVERSITY OF
SOUTH CAROLINA SCHOOL OF LAW, Columbia, South Caro-
lina, for Appellees. ON BRIEF: Joseph G. Wright, III, WRIGHT
LAW OFFICES, Anderson, South Carolina; Chad A. McGowan,
Anderson, South Carolina, for Appellees.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

In this product liability diversity case, after the jury awarded the
plaintiffs substantial damages, the district court denied the defen-
dant's motions for judgment as a matter of law and a new trial. We
affirm.

I.

Herman Humphries was employed by American Transport Sys-
tems, a subsidiary employee leasing company for Matlack, Inc. As a
driver for Matlack, Humphries drove a Mack Series CH long haul
truck that was manufactured by Mack Trucks, Inc. On February 22,
1995, while Humphries was connecting the air and electrical lines
from the cab of the truck to the attached trailer, he fell from the deck
plate and sustained serious physical injuries.

Humphries and his wife, Teresa, initiated this action against Mack
Trucks asserting strict liability and negligence claims and loss of con-
sortium. The Humphries alleged that the "L" shaped design of the
deck plate was defective and unreasonably dangerous because the risk

                     2
of injury posed by the open corner in the driver's side rear portion of
the deck plate--the point from which Herman Humphries fell--
substantially outweighed the utility of the configuration and the mini-
mal costs associated with manufacturing a symmetrical deck plate.
The Humphries also claimed that Mack Trucks negligently breached
its duty to exercise reasonable care to adopt a safe design for the deck
plate.

On a special verdict form, the jury expressly found Mack Trucks
liable under both strict liability and negligence theories. The jury
awarded Herman Humphries $1,873,539 in compensatory damages
and awarded Teresa Humphries $191,520 for loss of consortium.
Mack Trucks moved for judgment as a matter of law and a new trial,
which the district court denied.

Mack Trucks appeals. We review de novo the district court's order
denying judgment as a matter of law to determine whether the evi-
dence presented at trial, viewed in the light most favorable to the
Humphries, would have allowed a reasonable jury to render a verdict
in their favor. See In re Wildewood Litig., 52 F.3d 499, 502 (4th Cir.
1995). We review the district court's denial of the motion for a new
trial for abuse of discretion. Id.; United States v. Wilson, 118 F.3d
228, 237 (4th Cir. 1997).

II.

In denying Mack Trucks' motion for judgment as a matter of law,
the district court found sufficient evidence to support the jury's ver-
dict on both the strict liability and negligence claims. Applying South
Carolina law, we conclude that there was sufficient evidence to sup-
port the jury's finding of negligence. Therefore, we need not reach the
question as to the appropriate test under South Carolina law to be
applied to strict liability claims involving open and obvious dangers.

Unlike strict liability theory, which focuses on the product itself,
negligence theory of products liability focuses on the conduct of the
manufacturer, and a plaintiff must prove that the defendant failed to
exercise due care in some respect. See, e.g., Bragg v. Hi-Ranger, Inc.,
319 S.C. 531, 462 S.E.2d 321, 326 (Ct. App. 1995). A plaintiff can
meet this burden by showing that the manufacturer was aware of the

                    3
danger and failed to take reasonable steps to correct it. See Madden
v. Cox, 284 S.C. 574, 328 S.E.2d 108, 112 (Ct. App. 1985) (citing
Marchant v. Lorain Div. of Koehring, 272 S.C. 243, 251 S.E.2d 189
(1979)). The Humphries alleged that Mack Trucks breached a duty of
due care as to the original design of the deck plate as well as to the
timely manufacture and delivery of a retrofit for the deck plate once
it received notice of the product's dangerousness.

In addressing the alleged negligence as to the original deck plate
design, the district court correctly held Mack Trucks to the standard
of an expert in the field of heavy truck manufacturing. See, e.g.,
Carolina Home Builders, Inc. v. Armstrong Furnace Co., 259 S.C.
346, 191 S.E.2d 774, 779 (1972). Thus, Mack Trucks was under a
duty to exercise reasonable care to adopt a safe design for the deck
plate by balancing the seriousness and likelihood of harm against the
burden of feasible precautions to avoid or minimize harm. See
Restatement (Second) § 398 (1965); Mickle v. Blackmon, 252 S.C.
202, 166 S.E.2d 173, 192 (1969). The heart of the Humphries' negli-
gence claim is that a reasonable manufacturer, in seeking ways to
minimize the risks associated with the deck plate, would have utilized
human factors analysis in testing the "L" shaped design of the deck
plate, and that such analysis would have revealed the likelihood of
injury associated with the asymmetrical design. The Humphries
offered the testimony of several expert witnesses to support this the-
ory.

On appeal, Mack Trucks challenges the admissibility of the testi-
mony from two of those witnesses--Dr. Thomas R. Alley and Dr. S.
David Leonard. "[A]buse of discretion is the proper standard of
review of a district court's evidentiary rulings," including rulings on
the admissibility of expert testimony. General Elec. Co. v. Joiner, 522
U.S. 136, 118 S. Ct. 512, 517 (1997). "[T]he admissibility of expert
testimony in a federal court sitting in the diversity jurisdiction is con-
trolled by federal law." Scott v. Sears, Roebuck & Co., 789 F.2d 1052,
1054 (4th Cir. 1986).

A.

At trial, Dr. Alley testified about the "best understood functioning
of human perception and memory." Mack Trucks argues that Dr.

                     4
Alley's opinion that the asymmetrical design of the deck plate was
more dangerous than a symmetrical design lacked sufficient scientific
support; the company points out that Dr. Alley did not conduct any
tests or studies of the deck plate in formulating his opinion. Mack
Trucks also contends that Dr. Alley's conclusion that Herman Hum-
phries was "psychologically overloaded" contradicts Humphries' own
testimony, and therefore, the district court should have found Dr.
Alley's opinions to be unreliable and inadmissible. 1 In reconsidering
whether Dr. Alley's testimony was properly admitted into evidence,
the district court explained that it was the jury's responsibility to con-
sider the fact that Dr. Alley was not an engineer and that he conducted
no studies, tests, or inspections of the deck plate in determining how
much weight to give his testimony.

Fed. R. Evid. 702 provides that expert testimony may be admitted
if it will "assist the trier of fact to understand the evidence or to deter-
mine a fact in issue." It is in the sound discretion of the district court
whether the offered testimony provides such assistance. See, e.g.,
Scott, 789 F.2d at 1055 (upholding the admission of some "human
factors" testimony).
_________________________________________________________________
1 Despite the Humphries' assertion to the contrary, the record indicates
that Mack Trucks adequately preserved its objection to the admissibility
of Dr. Alley's testimony. Under Fed. R. Evid. 103(a)(1), a party must
state the specific grounds for its objection only when that ground would
not be clear from the context. In the case at hand, the ground for the
objection was clear in view of the following context: (1) Mack Trucks'
motion in limine, the Humphries' response to the motion, and the pre-
trial hearing; (2) the likely topic of the side bar conference immediately
preceding Mack Trucks' objection at trial; and (3) the district court's
order denying the post-trial motion for a new trial based on this issue.
See Werner v. Upjohn Co., 628 F.2d 848, 853 (4th Cir. 1980) (finding
that the ground for the objection was clear, particularly because the
defendant had filed a pre-trial motion with supporting memoranda
requesting the suppression of the evidence at issue), cert. denied, 449
U.S. 1080 (1981); United States v. Cummiskey, 728 F.2d 200, 205 (3d
Cir. 1984) (finding the context of the objection sufficient to compensate
for the lack of specificity where the district court's rulings on post-trial
motions demonstrated that the court was aware of the grounds for the
objection), cert. denied, 471 U.S. 1005 (1985).

                     5
Recently, in Kumho Tire Co. v. Carmichael, 119 S. Ct. 1167, 1174-
75 (1999), the Supreme Court held that a trial court's gatekeeping
obligation under Daubert v. Merrell Dow Pharm. Inc., 509 U.S. 579
(1993), applies not only to scientific testimony but to all expert testi-
mony because Rule 702 does not distinguish between"scientific"
knowledge, and "technical" or "other specialized" knowledge. At
issue in Kumho Tire was the testimony of an engineering expert. The
court held that a trial court may consider one or more of the Daubert
factors--testing, peer review, error rates, and"acceptability" within
the relevant professional community--in assessing the admissibility
of non-scientific expert testimony. Kumho Tire , 119 S. Ct. at 1175-76.
In other words, the Daubert factors do not constitute a definitive
checklist; the factors may be reasonable measures of reliability
depending on the nature of the issue, the expert's particular expertise,
and the subject of his testimony. Id.

Assuming, without deciding, that the Daubert factors should be
strictly applied to Dr. Alley's human factors testimony, we conclude
that the district court did not abuse its discretion in admitting the testi-
mony. Dr. Alley testified as to the relative risks associated with two
deck plate designs--a symmetrical one and an asymmetrical one. Dr.
Alley did not testify that the asymmetrical design at issue here was
unreasonably dangerous, but rather opined that a person was more
likely to fall when confronted with an asymmetrical design based on
theories concerning short-term memory and perception, visual spatial
tasks, and "interference effects."2

Dr. Alley's testimony did not derive merely from speculation or
subjective opinion. Rather, he applied his experience and training in
the field of cognitive psychology and relied, in part, on "generally
accepted psychological principles of human perception and memory"
embodied in various published authorities. See J.A. 72-73, 310-13,
319-20. We note that an expert opinion supported by"relevant litera-
_________________________________________________________________
2 Dr. Alley specifically testified on cross-examination that "I don't spe-
cifically claim to know exactly what went wrong that caused the fall.
However, my claim is, again, that making those connections, whether he
did it on all those other occasions, on this particular occasion, would
fairly fully occupy his attention and memory so that he may misjudge
where his feet are relative to the edges of the platform."

                     6
ture in the field" is more likely to be admissible under Rule 702 than
one that is not. See Oglesby v. General Motors Corp., Nos. 98-1716,
98-1818, 1999 WL 674752 (4th Cir. Aug. 31, 1999) (quoting
Alevromagiros v. Hechinger Co., 993 F.2d 417, 422 (4th Cir. 1993));
see also Maryland Cas. Co. v. Therm-O-Disc, Inc., 137 F.3d 780, 785
(4th Cir. 1998) (noting that the expert witness had cited numerous
works of technical literature which supported his analytical method to
support a finding that the admission of the testimony was not an abuse
of discretion); Freeman v. Case Corp., 118 F.3d 1011, 1016-17 (4th
Cir. 1997) (distinguishing Alevromagiros, 993 F.2d at 421, and citing
with approval the expert's review of industry literature and other pub-
lished sources to support the holding that the expert's testimony was
sufficient to sustain the jury verdict).

Mack Trucks emphasizes that Dr. Alley is not an engineer, that he
failed to conduct specific tests or studies involving the deck plate, and
that he failed to consider various aspects of the trucking industry. This
emphasis is misplaced. Unlike other human factors testimony that
some courts have deemed problematic, see, e.g. , Jaurequi v. John
Deere Co., 971 F. Supp. 416 (E.D. Mo. 1997), aff'd, 173 F.3d 1076
(8th Cir. 1999), Dr. Alley's testimony did not require him to develop
an alternative design or safety device that would require testing or
related studies. Dr. Alley's opinion was appropriately limited to his
field of expertise and was offered not only to assist the jury in making
its determination as to whether Mack Trucks was negligent in design-
ing the asymmetrical deck plate, but also to oppose Mack Trucks'
contributory negligence defense. The district court did not abuse its
discretion in admitting this testimony.

B.

Mack Trucks also challenges the expert testimony of Dr. Leonard.

Unlike its objection to Dr. Alley's testimony, Mack Trucks did not
preserve for appellate review its objection to Dr. Leonard's testimony.
Fed. R. Evid. 103(a)(1) requires an objection or a motion to strike to
be timely. Mack Trucks did not object and move to strike Dr. Leon-
ard's testimony until the conclusion of the Humphries' case. Although
Mack Trucks explains that it did not object earlier because the neces-
sary foundation evidence might have been introduced and admitted

                    7
during the remainder of the Humphries' case, this explanation goes
to the heart of what Rule 103(a)(1) was designed to avoid. See United
States v. Parodi, 703 F.2d 768, 783 (4th Cir. 1983) ("[t]imeliness of
objection under the Rule requires that it `be made at the time the evi-
dence is offered . . . .'") (quoting DiPaola v. Riddle, 581 F.2d 1111,
1113 (4th Cir. 1978), cert. denied, 440 U.S. 908 (1979)); McKnight
v. Johnson Controls, Inc., 36 F.3d 1396, 1408 (8th Cir. 1994) ("If the
ground for the objection becomes apparent while the witness is testi-
fying, a subsequent motion to strike the testimony after the witness
finishes does not preserve the issue for appeal"); Belmont Indus. v.
Bethlehem Steel Corp., 512 F.2d 434, 437-38 (3d Cir. 1975) (holding
that the opponent to certain evidence cannot wait to see if the propo-
nent of such evidence will take steps to obviate the objection). The
ground for objection here assertedly became apparent during cross-
examination of Dr. Leonard when counsel for Mack Trucks ques-
tioned his assumptions regarding the dimensions of the deck plate
previously used by Humphries. Mack Trucks did not object to the tes-
timony until the conclusion of the Humphries' case. Thus, it clearly
did not timely preserve the objection, and we review only for plain
error under Fed. R. Evid. 103(d).

Dr. Leonard testified that Herman Humphries' previous use of a
symmetrical deck plate may have caused "proactive interference"
when Humphries performed the same task of connecting the air and
electrical lines on the asymmetrical deck plate from which he fell. In
other words, Humphries had developed behavioral habits that might
have produced a "transference" problem when he went to make the
connections on an asymmetrical deck plate. On cross-examination,
defense counsel asked a series of questions intended to reveal that Dr.
Leonard's opinion was based on his misunderstanding that the previ-
ous symmetrical deck plate extended beyond the frame rails of the
truck. In response to these questions, Dr. Leonard modified his testi-
mony and emphasized that as long as the previous deck plate was
symmetrical, which it was, "proactive interference" could have an
effect irrespective of the precise dimensions and actual placement of
the deck plate. It was the province of the jury to evaluate Dr. Leon-
ard's testimony, and, as instructed, they were free to disregard the tes-
timony. See J.A. 571; Madden v. Cox, 284 S.C. 574, 328 S.E.2d at
114 (finding that the adequacy of an expert's knowledge went to the
weight of the testimony, not its admissibility, and thus presented a

                     8
jury question). Certainly, there was no plain error in admitting this
testimony.

C.

In sum, viewing the evidence in the light most favorable to the
Humphries, the evidence, particularly the testimony of Dr. Alley and
Dr. Tim Arthur Jur, as well as the testimony of Mack Trucks' expert
witness, Russell Marhefka, was sufficient to support the jury's deter-
mination that Mack Trucks had breached its standard of care and had
negligently designed the deck plate. See id. at 574, 328 S.E.2d at 112-
13.3 Therefore, the district court did not err in denying Mack Trucks'
motion for judgment as a matter of law.

III.

Mack Trucks raises a number of issues in support of its contention
that the district court abused its discretion in denying Mack Trucks'
motion for a new trial.

A.

Although Mack Trucks concedes that the jury instructions as given
were not legally inaccurate, it nevertheless contends that the district
court erred in refusing to give a jury instruction that would have
directed the jury's attention to the lapse of time and lack of other acci-
dents to support a finding that the deck plate was not defective or
unreasonably dangerous. "[T]he content of jury instructions in a
diversity case is a matter of state law . . . ." Hardin v. Ski Venture,
Inc., 50 F.3d 1291, 1293 (4th Cir. 1995). In evaluating challenges to
the district court's jury instructions, we "must look to the entire
charge and affirm the trial court if the instructions, taken as a whole,
fairly and adequately state the pertinent legal principles involved."
Spartanburg County Sch. Dist. Seven v. National Gypsum Co., 805
F.2d 1148, 1150 (4th Cir. 1986). "Even when jury instructions are
flawed, there can be no reversal unless the error seriously prejudiced
_________________________________________________________________
3 Because we conclude that there was sufficient evidence to support the
jury's verdict as to negligent design, we need not reach the question of
negligence as to the retrofit.

                    9
the [appellant]'s case." Hardin, 50 F.3d at 1296 (citing Wellington v.
Daniels, 717 F.2d 932, 938 (4th Cir. 1983)).

As the district court appropriately emphasized, evidence related to
the lapse of time and absence of prior accidents was admitted at trial
and was therefore a factor for the jury to consider. Following the rea-
soning in Hardin, we agree with the district court that an instruction
drawing the jury's attention to such evidence was not required. In
Hardin, the plaintiff argued that the trial court erred by failing to
include two proposed instructions addressing his theory of the case--
instructions that specifically mentioned his contentions about the
slope conditions--and that "the instructions as a whole were weighted
in favor of the ski resort, containing extraneous material that could
have confused the jury." Hardin, 50 F.3d at 1293. In affirming the
jury verdict in favor of the defendant resort, we explained:

          Where . . . the instructions accurately covered all the issues
          in the case, the failure to reference specific aspects of a
          party's contentions, such as the direction of the snow gun or
          the wetness of the snow, cannot serve as a basis for a find-
          ing of error. . . . To the degree that the instructions reflected
          any lack of balance, that is due to the content of state law,
          not to the misstatement of relevant legal principles by the
          court.

Id. at 1295.

A review of the jury charges in the instant case indicates that they
were adequately balanced and fair with regard to the Humphries' the-
ories of the case and Mack Trucks' affirmative defenses. Any refer-
ence to specific proof served only to clarify what evidence did not by
itself bar recovery or prove the existence of a defective design. For
example, Mack Trucks complains that the district court downgraded
its evidence with the instruction that "neither a long or continued
lapse of time nor changes in ownership will defeat recovery where
there is clear evidence of an original defect in the thing sold." How-
ever, the next line of the instruction states: "The mere fact that an
injury occurred and the fact that a product could have been more safe
is not sufficient to support a finding that the product was unreason-
ably dangerous." And four sentences later: "[P]roof that technology

                     10
existed which if implemented could have feasibly avoided a danger-
ous condition does not alone establish that the product was defective
or unreasonably dangerous." Therefore, the district court did not
abuse its discretion in denying the motion for a new trial for failure
to include Mack Trucks' proposed jury instruction. 4

B.

Mack Trucks also contends that the retrofit was a subsequent reme-
dial measure, and as such, any evidence related to it was inadmissible
under Fed. R. Evid. 407.5 Taking a broader view of "remedial mea-
sures" than that urged by Mack Trucks, the district court admitted any
evidence that preceded actual installation of the retrofit.

Mack Trucks relies on Kaczmarek v. Allied Chem. Corp., 836 F.2d
1055 (7th Cir. 1987), to argue that the evidence was inadmissible, but
the holding in that very case supports the opposite conclusion. In
Kaczmarek, the plaintiff suffered severe burns when acid leaked from
an allegedly defective coupling on a hose. The decision to replace the
couplings on hoses connecting the tank trailer to the receiving trailer
had been made before the accident but not implemented until after the
accident. The Seventh Circuit refused to carve out an exception under
Rule 407 for the admissibility of subsequent remedial measures when
the decision to adopt such measures was made prior to the accident.
Id. at 1060. However, to clarify its holding, the court stated that "the
decision itself will be admissible," id., but the actual fact of imple-
mentation will not, partly because of the incremental evidentiary
impact of this fact (once the decision itself is put into evidence) and
because of concerns related to the administration of Rule 407 once
exceptions, even seemingly innocuous ones, are created. Id.
_________________________________________________________________
4 Mack Trucks also argues that the district court erred in refusing to
charge the jury that a product cannot be defective and unreasonably dan-
gerous if the danger is open and obvious. For the reasons set forth at the
beginning of Part II above, we need not address the merits of this argu-
ment.
5 Although, as previously mentioned, we need not address the Humph-
ries' negligence claim as to the retrofit, we address this Rule 407 eviden-
tiary issue because, at least arguably, the Humphries used the evidence
of the retrofit to support their negligent design claim.

                    11
Applying the holding in Kaczmarek to the case at hand clearly indi-
cates that any evidence related to Matlack's request for a retrofit, the
design of the retrofit for trucks yet to be manufactured, the design of
the retrofit kit for trucks previously delivered, and Matlack's order for
the retrofit kits was admissible. See also Chase v. General Motors
Corp., 856 F.2d 17, 22 (4th Cir. 1988); Traylor v. Husqvarna Motor,
988 F.2d 729, 733 (7th Cir. 1993); Arceneaux v. Texaco, Inc., 623
F.2d 924, 928 (5th Cir. 1980), cert. denied, 450 U.S. 928 (1981).
Therefore, the district court did not abuse its discretion in admitting
evidence related to the retrofit.

C.

Mack Trucks further contends that the district court erred in strik-
ing a defense based on S.C. Code Ann. § 42-1-580 (Law. Co-op. 1985),6
which governs the effect of the rights of a third party against an
employer on an employee's recovery. However, Mack Trucks fails to
offer any convincing argument as to how this statutory provision enti-
tles it to a set off from Mack Trucks for any worker's compensation
benefits Herman Humphries may have received from American
Transport Systems. Therefore, remanding the case for a new trial on
this ground is not warranted.

D.

Finally, Mack Trucks argues that the jury award of nearly $1.9 mil-
lion dollars in favor of Herman Humphries is excessive. A district
court exercising diversity jurisdiction is obligated to apply state law
rules for evaluating an allegedly excessive verdict. See Gasperini v.
Center for Humanities, Inc., 518 U.S. 415 (1996). "A new trial abso-
lute should be granted only if the verdict is so grossly excessive that
_________________________________________________________________
6 Section 42-1-580 provides:

           When the facts are such at the time of the injury that a third
          person would have the right, upon payment of any recovery
          against him, to enforce contribution or indemnity from the
          employer, any recovery by the employee against the third person
          shall be reduced by the amount of such contribution of indemnity
          and the third persons's right to enforce such contribution against
          the employer shall thereupon be satisfied.

                     12
it shocks the conscience of the court and clearly indicates the amount
of the verdict was the result of caprice, passion, prejudice, partiality,
corruption, or other improper motive." Knoke v. South Carolina Dep't
of Parks, Recreation, & Tourism, 324 S.C. 136, 478 S.E.2d 256, 258
(1996).

The record supports the district court's analysis of Herman Hum-
phries' damages. He sustained severe physical injuries from his fall
that have resulted in permanent disability. The amount of the award
does not seem grossly excessive when one considers the medical bills,
past and future loss of earnings, and the non-economic damages for
the physical and mental pain and suffering caused by the injuries, the
resulting disability, and the loss of enjoyment of life.

Mack Trucks argues that Steinke v. Beach Bungee, Inc., 105 F.3d
192 (4th Cir. 1997), required the district court to provide a detailed
discussion of cases involving similar facts in order to identify the
range of damage awards in comparable cases. According to Mack
Trucks, because the district court failed to do so, we are unable to
conduct a meaningful review. However, Mack Trucks' reading of
Steinke is overbroad; the holding requires the trial court to provide its
reasoning only if there is a departure from a range of damages identi-
fied by the court or if no comparable cases are found. There is simply
no requirement that the district court provide an exposition of the rel-
evant cases it considers. In the present case, the district court specifi-
cally noted that it had evaluated verdicts in comparable cases.
Moreover, on appeal, Mack Trucks was free to cite analogous cases
in which the damages awards were significantly less; tellingly, it cites
none.

IV.

For the foregoing reasons, the judgment of the district court is

AFFIRMED.

                     13
