                        United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                 ___________

                                 No. 96-3555
                                 ___________

Joe Chronister,                       *
                                      *
            Appellee,                 *
                                      *   Appeal   from   the   United   States
District
      v.                              *   Court for the Eastern District of
Missouri.
                                    *
Bryco Arms, doing business as Jennings                                   *
Firearms,                           *
                                    *
           Appellant.               *
                               ___________

                              Submitted: May 22, 1997
                              Filed: September 11, 1997
                                 ___________

Before BEAM, Circuit Judge, HENLEY, Senior Circuit Judge, and LOKEN,
     Circuit Judge.
                             ___________

BEAM, Circuit Judge.

      Joe Chronister brought this products liability action against Bryco
Arms after a Bryco handgun misfired with an open chamber, leaving
Chronister with ear damage. A jury found for Chronister on claims based
upon strict liability and negligence. Bryco appeals, and we affirm.
I.   BACKGROUND

      We summarize the facts in the light most favorable to the verdict.
United Paperworkers Int'l Union v. Champion Int'l Corp., 81 F.3d 798, 800
(8th Cir. 1996). In 1994, Chronister purchased a "Bryco 59" 9mm handgun
for his girlfriend to use as a personal protection weapon. About two weeks
later, Chronister took the gun to his brother-in-law's home and shot at a
target set up behind the house. This was the first time the gun had been
fired. Several people took turns shooting the weapon, using cartridges
manufactured by Federal-Hoffman, Inc., d/b/a Federal Cartridge Company
(Federal-Hoffman). The gun misfed and jammed several times. On the last
occasion, when Chronister attempted to shoot again, the cartridge exploded
while the chamber was open. Chronister testified that he staggered back
and fell, got some soot and shrapnel in his face, was temporarily blinded,
and lost his hearing in his right ear for several hours and in his left ear
for a shorter period.    Chronister was not wearing any sort of hearing
protection at the time, even though both the gun's package and the
ammunition box warned that firearms should not be used without hearing
protection.

      Chronister was later examined by an ear-nose-throat physician, Dr.
Edward Becka, and an audiologist, Johnny Malone.         Becka and Malone
testified that Chronister has mild hearing loss in both ears, but that his
hearing is still within a normal range.      However, Chronister also now
suffers from two disorders: (1) tinnitus, or constant ringing in his ears;
and (2) hyperacusis (also called recruitment), which is a painful
hypersensitivy to noise.     Becka and Sam Hopmeier, a director of the
American Tinnitus Association, testified that both tinnitus and hyperacusis
can be caused by sudden exposure to high noise, and that the gun explosion
in all likelihood caused Chronister's conditions. Both of these conditions
are probably permanent.
      Chronister brought suit against Bryco, Federal-Hoffman, and Wal-Mart
Stores, Inc. (from whom he purchased the gun).      He proceeded to trial
against Bryco, having voluntarily dismissed the other defendants.        As
indicated, Chronister sought relief under




                                    -2-
theories of strict liability and negligence, alleging that the Bryco 59 was
defectively designed and that Bryco failed to warn of the risk that the gun
might misfire with the chamber open. Chronister argued that the Bryco 59
was defective because, as designed, it has a very high frequency of
misfeeds.   Furthermore, the gun's firing pin does double-duty as the
"ejector," that is, the part of the gun that kicks out a spent cartridge
after it has been fired. Chronister argued that his gun exploded when a
live cartridge jammed while feeding into the open chamber and while the
firing pin was still exposed.

      To prove this, Chronister relied upon tests conducted by Federal-
Hoffman while it was still a defendant. Federal-Hoffman employees and an
ammunition expert, Gerald Gourley, tested five Bryco 59s that were
purchased at different locations across the country. They test-fired these
pistols, as well as Chronister's gun, approximately 500 times. Gourley,
whom Chronister later retained as an expert witness, testified that every
one of the test guns misfed between twenty and fifty percent of the time.
Cartridges would feed into the chamber part-way, pointed straight up,
sticking down, or would come partially out of the chamber. Sometimes after
the gun was fired, it would eject a live cartridge along with the spent
cartridge. On at least three occasions, a gun misfed and jammed while the
firing pin was exposed to the cartridge with the chamber open. The jury
viewed a videotape of these tests. Although no cartridge ever exploded
during the tests, Gourley testified that Chronister's accident was in all
likelihood the result of such a misfeed, with the extra misfortune that the
firing pin happened to strike the primer, rather than some other part of
the cartridge.

      Gourley also testified that he and Federal-Hoffman employees,
including a metallurgist, examined the cartridge that misfired on
Chronister, and that it was apparently a normal cartridge. According to
Gourley, the exploding cartridge showed a strike from the firing pin off
to the side of the primer and coming up at an angle, which was consistent
with Chronister's explanation of the explosion. Furthermore, the




                                    -3-
cartridge that was fired immediately before the exploding one showed a
similar off-center and angled impression from the firing pin.

      The district court submitted to the jury separate verdict forms for
the strict liability and negligence claims. For both claims, the jury was
allowed to return a verdict for Chronister on the basis of design defect
or failure to warn, but was not required to indicate the theory or theories
upon which it predicated liability. The jury found for Chronister on both
claims, apportioning to Chronister, however, five percent of fault on the
strict liability claim and twenty-five percent on the negligence claim.
The jury awarded (subject to reduction for Chronister's fault) $315,000 for
the strict liability claim and $20,000 for the negligence claim.        The
               1
district court denied Bryco's motions for judgment as a matter of law
(JAML) and for a new trial. Bryco appeals, alleging that the district
court erred in : (1) denying its motion for judgment as a matter of law on
Chronister's strict liability claim; (2) instructing the jury on strict
liability failure to warn; (3) not allowing the jury to apportion fault
to Federal-Hoffman; and (4) denying its motion for a new trial based on
alleged evidentiary and trial errors. While this appeal was pending, the
district court granted, pursuant to 28 U.S.C. § 1963, Chronister's motion
to register the judgment in other jurisdictions. Bryco then appealed from
that order, and we consolidated the two appeals. Bryco has now dismissed
this later appeal.

II.   DISCUSSION

      A.   Strict Liability/JAML

      Under Rule 50 of the Federal Rules of Civil Procedure, a party is
entitled to judgment as a matter of law "when all of the evidence points
one way and is




      1
        The Honorable E. Richard Webber, United States District Judge for the Eastern
District of Missouri.

                                         -4-
'susceptible of no reasonable inference sustaining the position of the
nonmoving party.'" Keenan v. Computer Assoc. Int'l, Inc., 13 F.3d 1266,
1269 (8th Cir. 1994) (quoting White v. Pence, 961 F.2d 776, 779 (8th Cir.
1992)). In reviewing a JAML motion that seeks to set aside a jury verdict,
"we view the 'evidence in the light most favorable to the prevailing party
and must not engage in a weighing or evaluation of the evidence or consider
questions of credibility.'" Id. at 1268-69 (quoting Pence, 961 F.2d at
779).

      Under Missouri law, a plaintiff in a strict product liability case
must establish that "the product was then in a defective condition
unreasonably dangerous when put to a reasonably anticipated use" and that
"the product was used in a manner reasonably anticipated." Fahy v. Dresser
Indus., Inc., 740 S.W.2d 635, 637 (Mo. 1987) (en banc).2 Bryco argues that
it cannot be liable for Chronister's ear injuries because it could not
reasonably foresee that someone would use its handguns without wearing
hearing protection.    Further, Bryco maintains, use of a product that
contradicts that product's instructions or warnings is not a "reasonably
anticipated use."

      We disagree. It is basic products liability law that a manufacturer
cannot escape strict liability for a defective product that has been
misused by the plaintiff, if that misuse is reasonably foreseeable. See
63A Am. Jur. 2d Products Liability § 967 (1997) (Most "jurisdictions now
acknowledge that in applying strict liability in tort for design defects,
manufacturers cannot escape liability on grounds of misuse or abnormal use
if the actual use proximate to the injury was objectively foreseeable.").
This is the rule in Missouri. Nesselrode v. Executive Beechcraft, Inc.,
707 S.W.2d 371, 381 (Mo.




      2
        The plaintiff must also establish that "defendant sold the product in the course
of its business" and that "plaintiff was damaged as a direct result of such defective
condition as existed when the product was sold." Fahy, 740 S.W.2d at 637-38. These
factors are not at issue in this appeal.

                                          -5-
1986) (en banc) ("The concept of reasonably anticipated use . . . includes
misuse and abnormal use which is objectively foreseeable.").

      Chronister's expert witness, Gourley, and Bryco's plant manager,
Norman Anderson (who also designed the Bryco 59), both testified that they
knew that some people used weapons without hearing protection.        Bryco
argues, however, that the issue is more narrow: whether it is foreseeable
that someone might go target shooting without hearing protection. Even if
this is the proper inquiry, a reasonable jury could easily find that Bryco
could have foreseen that some target shooters might choose not to wear
hearing protection. Bryco was free to argue that Chronister's failure to
wear hearing protection constituted fault on his part, and in fact the jury
did allocate some fault to Chronister. Bryco was not entitled to judgment
as a matter of law on this issue.

      B.   Failure to Warn Instruction

      Bryco also contends that Chronister's strict liability failure to
warn theory should not have been submitted to the jury.3 Bryco makes two
arguments: (1) that it issued an adequate warning of the danger, and (2)
that its product did not cause Chronister's injury because no warning would
have altered his behavior.4



      3
       Although the jury was also charged on negligent failure to warn, Bryco only
appeals the strict liability claim.
      4
       In Missouri, there are five elements to a strict liability failure to warn case:

      (1) defendant sold the product in question in the course of defendant's
      business; (2) the product was unreasonably dangerous at the time of sale
      when used as reasonably anticipated without knowledge of its
      characteristics; (3) the defendant did not give adequate warning of the
      danger; (4) the product was used in a reasonably anticipated manner; and
      (5) plaintiff was damaged as a direct result of the product being sold
      without an adequate warning.

Tune v. Synergy Gas Corp., 883 S.W.2d 10, 13 (Mo. 1994) (en banc). To the extent
that Bryco extends to the failure to warn theory its argument that Chronister's use of the
gun was not "reasonably anticipated," we reject that argument for the reasons already
discussed.

                                           -6-
      As to the first issue, the box for the Bryco 59 carried the   following
warning: "Do not use this pistol until you have read the             enclosed
instructions and have been instructed in safe gun handling by a     competent
firearms instructor. All guns can be dangerous if improperly        handled."
An insert in the box stated:

     We strongly advise that you familiarize yourself with all
     mechanisms of this, or any gun, before putting ammunition into
     it. Do not carry with cartridge in chamber. Wear shooting
     glasses and hearing protection. Always point pistol in a safe
     direction. Never place your finger on the trigger unless you
     are ready to shoot the pistol.     Always check chamber after
     removing magazine for cartridge in barrel. Do not dry fire,
     shoot pistol with empty chamber.

      Chronister argues that these warnings were inadequate because they
failed to warn that the Bryco 59 was prone to misfeeding, which could
result in a cartridge discharging with the chamber open. He claims that
the general warning to use hearing protection was insufficient because it
failed to warn him of the specific risk that the weapon created. That is,
the warning only clearly encompassed routine discharge of the weapon, not
a sudden, catastrophic explosion of the cartridge in the open chamber.

      At first glance, Chronister's failure to warn theory appears to
merely bootstrap his defective design theory. However, Missouri law allows
a plaintiff to submit multiple theories of product liability, so long as
the plaintiff has established a submissible case under each theory.
Magnuson v. Kelsey-Hayes Co., 844 S.W.2d 448, 456 (Mo. Ct. App. 1992).
Furthermore, a failure to warn theory may be premised on a defendant's
failure to warn of an unreasonably dangerous design characteristic of the
product.   Johnson v. Hyster Co., 777 S.W.2d 281, 284-85 (Mo. Ct. App.
1989). In




                                    -7-
Johnson, for example, the plaintiff was injured when he was struck by an
asphalt roller that lurched forward while idling unattended. The plaintiff
brought both strict liability and negligence claims, alleging defective
product design and negligent failure to warn.       The plaintiff's design
defect theory was that the manufacturer failed "to equip the roller with
a device which would prevent the roller from moving unless the operator was
sitting in his seat." Id. at 283. The failure to warn theory was that
the manufacturer failed "to warn . . . that the roller would move even if
the operator was not seated at the controls." Id. The Missouri Court of
Appeals held it was not error to instruct the jury on both theories,
reasoning that "there is no inconsistency between product defect and . .
. failure to warn. In fact, the [negligent failure to warn] theory depends
upon the product defect in this case, because the negligence is alleged to
be the failure to warn of the fact the roller could move without the
operator being present to control its movement." Id. at 284. See also
Spuhl v. Shiley, Inc., 795 S.W.2d 573, 580 (Mo. Ct. App. 1990) (strict
liability failure to warn requires that product be in a defective
condition).

      In light of this, we find no error in allowing the jury to consider
whether Bryco's cautionary language adequately warned of the particular
risks of using its product. Bryco argues, however, that Chronister cannot
show that the lack of a specific warning caused his injury because his
disregard of the general warning to use hearing protection shows that no
warning would have changed his behavior. See Tune v. Synergy Gas Corp.,
883 S.W.2d 10, 14 (Mo. 1994) (en banc) (to establish causation, a
"plaintiff must show that a warning would have altered the behavior of
those involved in the accident."). A reasonable jury, however, could have
concluded otherwise. Chronister testified that you need to use hearing
protection when you know of an increased risk of loud discharge, such as
when firing a higher-caliber [.44 magnum] weapon. He testified that he did
not know of the risk that the Bryco 59 could misfire on an open chamber
while he held it, producing an explosion greater than the routine
discharge. The jury could reasonably have concluded that, had an adequate
warning of the Bryco




                                    -8-
59's particular risks been present, Chronister would have altered his
behavior. The district court did not err in submitting the failure to warn
theory to the jury.

      C.   Allocation of Fault to Non-Party

      The district court rejected Bryco's proposed instruction and verdict
forms allowing the jury to allocate fault to Federal-Hoffman. The court
concluded that Missouri law does not allow allocation of fault to an entity
that is not a party to the lawsuit, and that had Bryco wished to allocate
fault to Federal-Hoffman, Bryco should have impleaded it.

      Whether a non-party to a lawsuit can be apportioned a degree of fault
is a controversial question that courts and legislatures have resolved in
a number of ways.5 However, neither the Missouri legislature nor courts
have directly addressed this issue.6




      5
         One commentator notes that while the trend is to allow the jury to apportion
fault to a non-party, a number of states do not allow this. R. Sean Mcevoy, Pamela B.
v. Hayden: Apportioning Liability Based Upon One's Fault Rather than One's
Pocketbook, 18 Am. J. Trial Advoc. 701, 713-14 nn.100 & 101 (1995); see also
Reginald R. White, III, Comparative Responsibility Sometimes: The Louisiana
Approach to Comparative Apportionment and Intentional Torts, 70 Tul. L. Rev. 1501,
1536 n.167 (1996) (noting that at least five states do not allow allocation of fault to
nonparties). Section two of the Uniform Comparative Fault Act prohibits
apportionment of fault to nonparties, 12 U.L.A. 135-136 (1996), while the Restatement
(Second) of Torts, section 433A, allows nonparty apportionment. See generally Gerald
W. Boston, Apportionment of Harm in Tort Law: A Proposed Restatement, 21 U.
Dayton L. Rev. 267, 375 (1996) (discussing Restatement (Second) of Torts and
proposed Third Restatement).
      6
        The state's products liability statute allows a defendant "to plead and prove the
fault of the plaintiff as an affirmative defense," with any damages offset by the
plaintiff's degree of fault, but says nothing about proving fault of other entities. Mo.
Rev. Stat. § 537.765 (1996). The comments to the Missouri Approved Jury Instruction
for comparative fault state that "apportionment of fault among parties not sued by
plaintiff depends upon substantive issues which may not yet be resolved. The
Committee takes no position on unresolved substantive issues." MAI 37.07, note 3
(1996)

                                          -9-
In this case, however, we need not speculate on how Missouri courts would
resolve this question.    No instruction on Federal-Hoffman's fault was
warranted because there was no evidence at trial that the cartridge was
defective or in any way partly responsible for the accident.

      Bryco points to the testimony of its expert, J.B. Wood, who examined
the cartridge for the first time on the stand with a jeweler's loupe. He
testified that the markings on the cartridge indicated to him that the
cartridge was properly chambered when it discharged, disputing Chronister's
theory of the accident. In Woods's opinion, the gun was not defective and
the only explanation for the misfiring was that the cartridge was faulty.
However, Wood never identified any defect in the cartridge, nor did he
testify that his examination revealed anything implicating the cartridge.
Wood merely testified that the gun was not at fault, and stated in
conclusory fashion that, therefore, the cartridge must have been the
problem.   This is not sufficient evidence to submit to a jury a claim
against Federal-Hoffman. The evidence at trial did not support instructing
the jury on this defense theory, even if Missouri law would allow such a
charge. We therefore affirm. Cooksey v. Delo, 94 F.3d 1214, 1218 (8th
Cir. 1996) (appellate court may affirm on any basis supported by the
record).

      D.   Other Issues

      Bryco also appeals based on certain evidentiary rulings by the
district court and the district court's denial of its motion for a
mistrial. We have examined these issues and find them to be without merit.

III. CONCLUSION




                                   -10-
      For the reasons discussed above, we affirm the judgment of the
district court.

     A true copy.

          ATTEST:

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




                                 -11-
