UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

GERALD LEE PULICE,
Plaintiff-Appellee,

v.

WOOD/CHUCK CHIPPER CORPORATION,
Defendant-Appellant,                                                No. 96-2026

and

SAFETY TEST AND EQUIPMENT
COMPANY, INCORPORATED,
Defendant.

Appeal from the United States District Court
for the Northern District of West Virginia, at Clarksburg.
Irene M. Keeley, District Judge.
(CA-95-55)

Argued: May 8, 1997

Decided: June 23, 1997

Before WILKINSON, Chief Judge, and RUSSELL and
MICHAEL, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: J. Greg Goodykoontz, STEPTOE & JOHNSON, Clarks-
burg, West Virginia, for Appellant. William Lee Frame, WILSON,
FRAME, BENNINGER & METHENEY, Morgantown, West Vir-
ginia, for Appellee. ON BRIEF: Jacqueline A. Wilson, STEPTOE &
JOHNSON, Clarksburg, West Virginia, for Appellant.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

The Wood/Chuck Chipper Corporation (Wood/Chuck) appeals a
$123,134.13 jury verdict in favor of plaintiff Gerald Pulice, who lost
all of the fingers on his left hand in a wood chipper accident.
Wood/Chuck claims that the district court erred in giving a supple-
mental jury instruction on damages, erred in crafting the verdict form,
erred in its instructions on product liability, and erred in dealing with
a reference to another lawsuit. Finally, Wood/Chuck challenges the
sufficiency of the evidence. We find no merit in Wood/Chuck's argu-
ments and therefore affirm.

I.

Wood/Chuck is a North Carolina corporation engaged in the design
and manufacture of commercial wood chippers. In 1986 Wood/Chuck
sold thirty chippers to the West Virginia Department of Highways
(WVDOH). On May 3, 1993, Pulice, a WVDOH laborer, was work-
ing with a crew clearing brush in Marion County, West Virginia. The
discharge chute on the Wood/Chuck chipper the crew was using
became clogged. The crew turned the chipper off and lifted the dis-
charge chute to unclog it. Raising the discharge chute exposes the
area where the cutting mechanism is located. Because of the chipper's
flywheel design, the cutter blades continue to rotate a few minutes
after the chipper is turned off. In this case, as soon as the chute was
raised, Pulice inserted his left hand to remove the clogged debris. The
whirling cutter blades caught Pulice's glove and fingers, and the

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thumb, fourth, and fifth fingers on his left hand were severed com-
pletely. The second and third fingers were crushed and later had to be
amputated. Pulice testified that he did not know the cutter blades on
the chipper kept spinning after the motor was turned off.

After Pulice filed an action against Wood/Chuck in state court
alleging that the chipper was defective, Wood/Chuck removed the
case to the United States District Court for the Northern District of
West Virginia. During a jury trial that lasted three days, the parties
stipulated that Pulice's medical expenses were $13,097.33 and that
his lost income was $10,036.80. When the jury brought out its verdict
form the first time, it had concluded that the chipper was defective
and that Pulice himself was guilty of some negligence. The jury
apportioned fault as follows: Pulice at 10 percent, the WVDOH at 60
percent, and Wood/Chuck at 30 percent. The jury then awarded Pulice
$23,134.13, which represented the stipulated medical expenses and
lost income. The district court noticed on the verdict form that the
jury had made a "0" award for "other damages." As a result, the dis-
trict court instructed the jury to "return to the jury room to consider
the element of other damages" and to "award something for that cate-
gory of damages." The jury thereafter returned with an amended ver-
dict form, awarding Pulice $123,134.13 which included the previous
award plus $100,000 for "other damages." The district court denied
Wood/Chuck's post-trial motions, and Wood/Chuck now appeals.

II.

Wood/Chuck first argues that the district court abused its discretion
when it examined the jury's initial verdict form and then instructed
the jury to reconsider and award something for "other damages."
When the jury first submitted its verdict form, it found Wood/Chuck
liable, awarded Pulice $23,134.13 in damages for medical expenses
and lost income, but placed a zero on the line for"other damages."
After reviewing the form, the district court gave the following instruc-
tion:

          Because you have found in favor of the plaintiff on the issue
          of liability and have awarded him medical expenses and past
          lost income, the Court instructs you that you are to return to
          your jury room to consider the element of other damages, as

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          that is explained in my instructions to you, and I further
          instruct you that you must award something for that cate-
          gory of other damages because of the finding of liability,
          and the Court will not instruct you with regard to any
          amount. That is completely within your discretion, but you
          must award something to the plaintiff in recognition of the
          injury and the liability finding that you made.

We believe that the court's procedure and instructions were appropri-
ate.

The district court applied West Virginia law. In West Virginia
"where there is uncontroverted evidence of damages and liability is
proven, a verdict not reflecting them is inadequate." Payne v. Gundy,
468 S.E.2d 335, 338 (W. Va. 1996) (citation omitted). The Supreme
Court of Appeals of West Virginia has noted that"subjective though
pain and suffering awards may be, the jury must give some reasonable
compensation for pain and suffering to victims when such pain and
suffering have been demonstrated, and an award which is so unrea-
sonable that its adequacy cannot be debated by fair-minded men must
be set aside." Freshwater v. Booth, 233 S.E.2d 312, 316 (W. Va.
1977); see also Linville v. Moss, 433 S.E.2d 281, 285 (W. Va. 1993)
(noting that a verdict will be considered inadequate if the "sum [is]
so low that under the facts of the case reasonable men cannot differ
about its adequacy") (internal quotation marks and citation omitted).

The jury's original verdict awarded nothing for Pulice's "other
damages," that is, for pain and suffering. The award was limited to
the sum of stipulated medical expenses and past lost income. In light
of the evidence the district court concluded that the original award
was inconsistent with the jury's finding of liability. The evidence sup-
ports this conclusion. Pulice remained conscious during the accident.
For several months after his injury, Pulice was required to soak the
stump of his left hand three times a day, and he took medication to
help alleviate the pain. He also suffered mental anguish and eventu-
ally sought psychological counseling. For a time he was unable to
perform basic functions like dressing himself and eating. After eight
months of medical treatment and rehabilitation, Pulice returned to a
job with the WVDOH, where he must be provided with special

                    4
accommodations. Finally, Pulice has a 54 percent permanent disabil-
ity as a result of the wood chipper accident.

This evidence demonstrates that the accident caused Pulice a great
deal of pain and suffering. Thus, the district court did not abuse its
discretion in instructing the jury to deliberate further and "award
something for that category of other damages." See Godfrey v.
Godfrey, 456 S.E.2d 488, 492 (W. Va. 1995) (holding that jury's ver-
dict was inadequate because it did not make required award for plain-
tiff's pain and suffering).

III.

In the verdict form interrogatory addressing comparative fault, the
district court listed Pulice, Wood/Chuck, and "others." The WVDOH
was written in beside the word "others." J.A. 25. Wood/Chuck argues
that the district court abused its discretion by allowing "others" to be
considered for comparative fault. The inclusion of"others" (specifi-
cally, WVDOH) was incorrect, Wood/Chuck says, because neither
Wood/Chuck nor Pulice made any claims against the WVDOH.
Wood/Chuck's argument is without merit.

In Bowman v. Barnes, 282 S.E.2d 613, Syllabus pt. 3 (W. Va.
1981), the Supreme Court of Appeals of West Virginia held:

          In order to obtain a proper assessment of the total amount
          of the plaintiff's contributory negligence under our compar-
          ative negligence rule, it must be ascertained in relation to all
          of the parties whose negligence contributed to the accident,
          and not merely those defendants involved in the litigation.

See Miller v. Monongahela Power Co., 403 S.E.2d 406, 412 (1991)
(noting that the trial court erred by not allowing the defendant to
argue the fault of the employer even though the employer was not a
party to the case); Vannoy v. Uniroyal Tire Co. , 726 P.2d 648, 650
(Id. 1985) ("It is established without doubt that, when apportioning
negligence, a jury must have the opportunity to consider the negli-
gence of all parties to the transaction, whether or not they be parties
to the lawsuit and whether or not they can be liable to the plaintiff or

                     5
the other tortfeasors either by operation of law or because of a prior
release.").

At trial Wood/Chuck attempted to prove that Pulice was a trained,
skilled, and experienced equipment operator who, with full knowl-
edge and appreciation of the hazards, reached into the chipper. Pulice,
however, testified that he did not know the blades kept spinning after
the chipper was turned off. In particular, he said that the WVDOH did
not train him in the use of the chipper and that he had very little expe-
rience operating it. Under these circumstances, the negligence or fault
of others, specifically the WVDOH, was an important consideration
in determining the percentage of negligence or fault of Pulice and
Wood/Chuck. Therefore, we affirm the district court's decision to list
"others" (i.e., the WVDOH) in the comparative fault interrogatory.

IV.

Wood/Chuck next argues that the district court gave an erroneous
instruction on what Pulice had to prove to establish that the chipper
was defective. In Morningstar v. Black & Decker Manufacturing Co.,
253 S.E.2d 666 (W. Va. 1979), the West Virginia Supreme Court
referred to a New Jersey decision, Cepeda v. Cumberland Engineer-
ing Co., 386 A.2d 816 (N.J. 1978), which used a risk/utility analysis
to determine whether a product was defective. One of the seven fac-
tors in the risk/utility analysis focuses on the manufacturer's ability
to obtain liability insurance. When the district court here instructed
the jury that it "may consider" risk/utility, it mentioned only six of the
seven factors, omitting the factor dealing with the ability to obtain lia-
bility insurance. Several reasons lead us to believe that the omission
of this factor was appropriate.

First, in Morningstar the West Virginia court did not adopt the
risk/utility analysis as a definitive standard. The court simply men-
tioned the risk/utility framework in the context of discussing various
methods of proving that a product is defective. Thus, Morningstar
recognized that the risk/utility analysis "does have a place" in the
product liability field but cautioned that the analysis "is not easily sus-
ceptible to a jury instruction." Morningstar , 253 S.E.2d at 682. Sec-
ond, Fed. R. Evid. 411 specifically provides that proof of insurance
or non-insurance is not admissible "upon the issue whether the person

                     6
acted negligently." West Virginia case law is in accord: "the jury
should not be apprised in any way that the defendant is not insured
against liability . . . ." Kaiser v. Hensley , 318 S.E.2d 598, 601 (W. Va.
1983) (quoting Graham v. Wriston, 120 S.E.2d 713 (1961)). Third,
the district court gave several instructions in addition to the one on
risk/utility to aid the jury in its determination of whether the
Wood/Chuck chipper was defective. These instructions were in line
with West Virginia law on product liability. We therefore conclude
that the district court did not abuse its discretion in formulating the
risk/utility instruction.

V.

Wood/Chuck says that the district court erred in handling the refer-
ence to another lawsuit against Wood/Chuck. During the cross-
examination of Dennis Beam (president of Wood/Chuck), Pulice's
counsel began reading from a complaint filed by another man, Elbert
Causey, against Wood/Chuck in South Carolina. Causey alleged that
he had lost part of his hand while using a Wood/Chuck chipper. The
district court sua sponte stopped the questioning and had a bench con-
ference. At that point Wood/Chuck's counsel said that he had no
objection to the questioning as long as it was mentioned that
Wood/Chuck was dismissed voluntarily from the South Carolina suit.

The district court decided that the allegations from the South Caro-
lina complaint were not relevant and instructed both parties not to dis-
cuss that case. The court then made the following statement to the
jury:

           Members of the jury, during the bench conference, I dis-
          cussed with counsel for both parties what they perceived to
          be the possible relevance of allegations in a complaint that
          was filed in another state and did not involve this particular
          plaintiff.

           After listening to what counsel have advised me, I have
          ruled that allegations -- and that's all they are, mere allega-
          tions in another case -- are not relevant in this case, and I
          will not permit either counsel to inquire of this witness with

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          regard to the Complaint that has been referenced by Mr.
          Frame.

Testimony continued without any further mention of the South Caro-
lina case. However, during closing argument Pulice's counsel again
mentioned the South Carolina complaint but Wood/Chuck made no
objection. In its final instructions the district court told the jury: "Any
evidence to which an objection was sustained by the Court during the
course of trial, and any evidence ordered stricken by the Court, must
be entirely disregarded by you in your deliberation."

Wood/Chuck argues that it should have been permitted to tell the
jury that it was voluntarily dismissed from the South Carolina suit.
Wood/Chuck contends that it was prejudiced because the jury heard
references to the prior litigation during the testimony and again at
closing. These references, according to Wood/Chuck, created the
impression that Mr. Causey had successfully sued the company in
South Carolina for a similar accident. We do not believe that these
references gave rise to any reversible error. When the South Carolina
complaint was mentioned during the cross-examination of
Wood/Chuck's president, the district court immediately instructed the
jury that the allegations in that case were not relevant, and we have
no reason to believe that the jury did not follow that instruction.
Moreover, in light of this clear instruction, there was no reason for the
district court to draw further attention to the matter by allowing
Wood/Chuck to tell the jury that it had been voluntarily dismissed
from the prior suit. When Pulice's counsel mentioned the South Caro-
lina accident during closing argument, Wood/Chuck did not object,
and we find no plain error.

VI.

Finally, Wood/Chuck argues that there was insufficient evidence
for a reasonable jury to find that its chipper was defective and was the
proximate cause of Pulice's injuries. As a result, Wood/Chuck con-
tends that the district court erred in denying its motion for judgment
as a matter of law.

The Supreme Court of Appeals of West Virginia has said that prod-
uct defects fall generally into three categories (that may overlap):

                     8
design defects, structural defects, and use defects arising out of the
lack of, or the inadequacy of, warnings, instructions, and labels.
Morningstar, 253 S.E.2d at 682. Wood/Chuck argues that Pulice's
main theory was that the Wood/Chuck chipper was defective because
of inadequate warnings and manuals. This theory failed, according to
Wood/Chuck, because (1) it offered testimony that the chippers had
warnings and decals on them when they were delivered to the
WVDOH and (2) Pulice himself testified that he had seen a warning
on the chipper which said that no one was to operate the machine
unless he had been instructed in its safe operation and had read the
safety and operating manuals.

The district court did not err in denying Wood/Chuck's motion.
First, inadequate warning was not Pulice's only theory. He also
offered evidence that the chipper was defective in design. His expert
testified that the Wood/Chuck chipper was not reasonably safe
because the design of the chipper did not incorporate an interlock
device that would stop the cutting mechanism when the discharge
chute was open. Second, the jury could have concluded that the warn-
ing on the chipper was inadequate because it gave no indication that
the rotating cutter blades would continue to turn when the chipper
was turned off. Third, the district court properly instructed the jury on
alternative ways in which a product may be defective: design defect
and "use defectiveness" arising out of the lack of or the inadequacy
of warnings, instructions, and labels. The evidence, when measured
against the instructions, supports the jury's finding that a defect in the
Wood/Chuck chipper proximately caused Pulice's injury.

VII.

The judgment of the district court is

AFFIRMED.

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