                                    ____________________

                                         No. 95-2893
                                     ____________________

Diane Buchanna,                                *
                                                      *
                        Appellee,                     *     Appeal from the United
                                                      *     States District Court
     v.                                               *     for the Eastern
                                                      *     District of Arkansas.
Diehl Machine, Inc.,                           *
                                                      *
                        Appellant.             *


                                    ____________________

                                  Submitted:       April 12, 1996

                                   Filed: October 15, 1996
                                    ____________________

Before BEAM, Circuit Judge, MURPHY, Circuit Judge, and NANGLE, Senior
District Judge.*

                                    ____________________

NANGLE, Senior District Judge.

    The appellant-defendant appeals from a judgment of $350,000.00 entered
against it on a jury verdict.           Appellant contends that the judgment should
be reversed because the trial court1 erred in denying its motion for
judgment as a matter of law, the trial court erred when it allowed the
introduction of certain industry standards into evidence at trial and the
trial       court    erred   by   creating     an    appearance   of   partiality   for   the
plaintiff.          We affirm.




        *
           The HONORABLE JOHN F. NANGLE, Senior United States
District Judge for the Eastern District of Missouri, sitting by
designation.
        1
           The HONORABLE GEORGE H. HOWARD, Jr., United States
District Judge for the Eastern District of Arkansas.
                                       I.


    Diane Buchanna was a saw operator for Bassett Wood Products.     In 1992,
Buchanna had been a saw operator for 18 years and had worked with the same
saw for approximately 12 years.   The saw she worked with was a Model SL52
industrial straight line ripsaw manufactured by appellant Diehl in 1968.
The saw has a 15 horsepower motor and a 14 inch blade and is used to cut
a board in half length-wise.   All of the blade of the saw, except the top
three inches, was enclosed by a metal guard called a sawpit.      In addition
to guarding the blade, the sawpit served as a sawdust receptacle.    A metal
door accessed the sawpit and the blade was 12 inches from the door.     When
the door is opened, or the power is turned off, the motor shuts down but
it takes four to five minutes for the blade to coast to a stop.    A central
vacuum system, not provided by the manufacturer, was used to remove sawdust
from several machines including the ripsaw.       After its manufacture, but
several years before the incident occurred in this case, Diehl provided a
number of warning labels that were affixed to the saw.


    On December 14, 1992, Buchanna returned from a work break and decided
to clean the sawdust out of the sawpit.     As she had been instructed by her
supervisor, she turned off the saw and then used a piece of wood to stop
the blade so that she did not have to wait for it to coast to a stop.
Thinking that the blade had stopped, she reached into the sawpit with her
left hand to clean out the sawdust.         She came into contact with the
spinning blade and injured her hand.    Her small finger had to be amputated
and her hand reconstructed.       After plaintiff's injury, her employer
installed a T bar outside the sawpit door so that the door could not be
opened if the blade, and the T bar, were spinning.


    On January 14, 1994, plaintiff filed this diversity products liability
action against Diehl alleging theories of strict




                                    -2-
liability and negligence.     The case was tried to a jury for three days.
At trial, Buchanna's expert witness, a failure analyst, testified that the
saw was inherently dangerous, and therefore defective, because the sawpit
door could be opened while the blade was spinning, because the saw clogged
up with debris on a regular basis, and because the lighting at the sawpit
door was inadequate for a person to see if the blade was still spinning.
During the cross-examination of Buchanna, defense counsel attempted to
impeach her with deposition testimony concerning the use of both her hands
upon her return to work after the accident.    The court allowed Buchanna's
counsel to voir dire her in front       of the jury, and followed up with
questions of its own, to clarify plaintiff's testimony on this point.
During Diehl's case-in-chief, Diehl's president testified that   the saw met
all applicable industry standards and that the use of a piece of wood to
stop the blade was safe.   Plaintiff, over defendant's objection, introduced
American National Standards Institute ("ANSI") standards, approved after
the manufacture of the saw, to impeach the president's testimony.     At the
conclusion of the trial, the jury returned a general verdict for plaintiff
for $350,000.00.    Diehl moved for judgment as a matter of law, both at the
conclusion of Buchanna's case and at the close of evidence.        The court
denied the motion and this appeal was taken.


                                     II.


     A denial of a motion for judgment as a matter of law is reviewed de
novo applying the same standard as the trial court. Kaplon v. Howmedica,
Inc., 83 F.3d 263, 266 (8th Cir. 1996).    Judgment entered on a jury verdict
should be affirmed, if viewing the evidence in the light most favorable to
the appellee, reasonable persons could differ as to the proper conclusion.
Rademaker v. State of Nebraska, 906 F.2d 1309, 1311 (8th Cir. 1990).
Arkansas law applies in this diversity action and its interpretation is
reviewed de novo.    Kaplon, 83 F.3d at 266.




                                     -3-
       Diehl asserts that judgment as a matter of law is appropriate on
Buchanna's strict liability claim because she failed to present substantial
evidence that the saw was defective rendering it unreasonably dangerous.
Under Arkansas law, a manufacturer is subject to strict liability if the
product is supplied in a defective condition which renders it unreasonably
dangerous and that defective condition was the proximate cause of the harm.
Ark.   Code Ann.   § 4-86-102(a)(1987).   Unreasonably dangerous is defined
by statute in Arkansas:
       "Unreasonably dangerous" means that a product is dangerous to
       an extent beyond that which would be contemplated by the
       ordinary and reasonable . . . user who. . . . uses the product,
       assuming the ordinary knowledge of the community or of similar
       . . . users . . . as to its characteristics, propensities,
       risks, dangers, and proper and improper uses, as well as any
       special knowledge possessed by the particular . . . user . . .
       or which he or she was required to possess.

Ark. Code Ann.     § 16-116-102 (1987).   We find that Buchanna presented
substantial evidence that the saw was defective and unreasonably dangerous.


         Buchanna's evidence that the saw was defective rendering it
unreasonably dangerous was primarily supplied by Buchanna's expert, Robert
Evans.     Evans testified that the saw was inherently dangerous, and
therefore defective, mainly because the sawpit door could be opened while
the blade was spinning.   He also criticized the fact that the saw clogged
up with debris on a regular basis and that the lighting at the sawpit door
was inadequate for a person to see if the blade was still spinning.      Diehl
contends that Evans' opinions are not substantial evidence because he "was
completely ignorant of the field in which he testified and thus had no
basis for his claims".    Appellant's brief at 16-17.


         Under Arkansas law, "[a] properly qualified expert's opinion
constitutes substantial evidence unless it is shown that the




                                    -4-
expert's opinion is without reasonable basis".     Ford Motor Co. v. Massey,
855 S.W.2d 897, 899 (Ark. 1993).      Diehl cannot argue that Evans was not
properly qualified because Diehl did not object to the approval of Evans
as an expert by the district court.     Trial Transcript at 157.   Moreover,
there was a reasonable basis for Evans' opinions.    Evans testified that he
relied on his knowledge, education and background in forming his opinion.
Id. at 129.    Evans further testified that in forming his opinion, he relied
on the operating and maintenance manuals for the machine, the deposition
testimony of Buchanna and Diehl's plant manager, photographs of the saw,
industry standards and regulations, and drawings of the machine.      Id. at
129-30.   Diehl had an opportunity to cross-examine Evans to try to show
that his opinion had a questionable basis.      Such an opportunity was all
that was required and the jury was entitled to credit Evans' testimony if
it so chose.    See Massey, 855 S.W.2d at 899, 900 (stating that if cross-
examination shows expert testimony to have weak or questionable basis that
goes to weight and credibility of testimony).


    Buchanna also contends that two subsequent remedial measures -Diehl's
providing of warning labels after manufacture and Bassett's installation
of the mechanical interlock device (the T bar) - provide substantial
evidence to support the jury's verdict.    Federal Rule of Evidence 407 does
not require the exclusion of subsequent remedial measures in strict
liability cases. See Lockley v. Deere & Co., 933 F.2d 1378, 1386 (8th Cir.
1991)(holding that evidence of subsequent remedial measure in support of
strict liability claim was not precluded by Rule 407).       Moreover, these
subsequent remedial measures were relevant to show that a different design
or warning would have prevented the harm and that it was feasible to
include this design or warning before the product was sold.      See Robbins
v. Farmers Union Grain Terminal Association, 552 F.2d 788, 794, 794 n.5
(8th Cir. 1977).    Thus, these measures also constitute evidence supporting
the jury's verdict as to the strict liability claim.




                                     -5-
    In addition to its criticism of Evans' opinions, Diehl contends that
there       was   not   substantial   evidence   that   the   saw   was   defective   and
unreasonably dangerous because Buchanna had worked with the saw for 12
years, had read the safety instructions, was aware of the warning labels
on the saw, and knew not to stick her hand in the sawpit door until the
blade had stopped spinning.            Both Buchanna and Diehl agree that, under
Arkansas law, the open and obvious danger rule is not a bar to recovery for
a strict liability claim.             See Lockley, 933 F.2d at 1383.          As it was
entitled to do under the law, the jury heard the evidence on this issue and
found for Buchanna regardless of any open or obvious danger.


        Diehl further contends that Buchanna was required to prove that the
machine contained a danger other than that danger posed by all ripsaws.
Diehl relies on French v. Grove Manufacturing Co., 656 F.2d 295 (8th Cir.
1981), for this proposition.             In French, the Court held that a jury
instruction that required plaintiff to prove that the product "contains
some danger other than those all cranes pose, which danger was not and
would not reasonably be appreciated by an ordinarily prudent person" was
not exceedingly clear but was not in error. Id. at 299.              This holding does
not mean that Arkansas plaintiffs in strict liability cases are required
to show a difference between the alleged defective product and all other
similar products in every case.             Rather, under the Arkansas Products
Liability Act, it is evidence that may be considered by the trier of fact.
Ark. Code Ann.          § 16-116-104(a)(2)(1987).


        Diehl also asserts that its motion for judgment as a matter of law
should have been granted because Buchanna failed to produce substantial
evidence that Diehl was negligent in its design of the saw.2                  The Court
disagrees. In Arkansas, an inference of negligence




        2
           Although Buchanna alleged both negligent design and
negligent failure to warn claims, the negligent design claim
appears to have been the primary claim at trial and is the
negligence claim addressed on appeal by the parties.

                                           -6-
arises when a product is shown to be unreasonably dangerous.              International
Harvester Co. v. Land, 354 S.W.2d 13, 18 (Ark. 1962).             Contrary to Diehl's
argument, Buchanna showed that Diehl owed her a duty of care by showing
their relationship as manufacturer and user of the saw.                    As discussed
above, Evans' expert testimony supports the jury's finding of unreasonable
dangerousness.     In addition, although subsequent remedial measures are
generally excluded by Rule 407 in negligence claims (as the warning labels
supplied by Diehl after manufacture would be here), Bassett's installation
of the mechanical interlock device would also support the jury's finding
of negligence in this case.              There is an exception to Rule 407 for
subsequent remedial measures undertaken by third parties "because the
policy goal of encouraging remediation would not necessarily be furthered
by exclusion of such evidence".          O'Dell v. Hercules, Inc., 904 F.2d 1194,
1204 (8th Cir. 1990); see also 2 Jack B. Weinstein & Margaret A. Berger,
Weinstein's Evidence ¶ 407[01] at 407-11 (1994)("Because the controlling
ground for excluding evidence has been the promotion of the policy of
encouraging people to take safety precautions, remedial measures carried
out by persons not party to the suit are not covered.")(footnotes omitted).


       Diehl's argument that other evidence, including compliance with
applicable industry standards in place at the time of manufacture and
evidence that the saw was as safe as other saws manufactured in 1968, shows
that   judgment   as   a   matter   of    law    should   have   been   granted   is   not
persuasive.   Rather, such evidence merely shows that the jury had competing
evidence from which to choose.           See Ark. Code Ann. § 16-116-105(a) and
16-116-104(a)(1987).       A reasonable jury could have come to the conclusion
that Diehl was negligent in its design of the saw.                Therefore, the trial
court did not err in denying Diehl's motion for judgment as a matter of
law.




                                           -7-
                                     III.


     Diehl's second argument on appeal is that the trial court erred in
allowing Buchanna to introduce industry standards promulgated after the saw
was manufactured.   A district court's admission of evidence over objection
is reviewed   for an abuse of discretion. United States v. Whitetail, 956
F.2d 857, 861 (8th Cir. 1992).    As noted above, Diehl's president, Robert
Rozman, who was also chairman of the ANSI committee on wood working
machines, was called to testify in Diehl's case-in-chief.    He was certified
as an expert in standards and state of the art for the wood industry.
Trial Transcript at 361.    Mr. Rozman testified that the saw in question met
all applicable industry standards in 1968.    Id. at 362.   He also testified
that stopping the machine with a piece of wood was not an unsafe practice.
Id. at 388.


      Buchanna contends that she introduced parts of the subsequently
approved ANSI standards to impeach Rozman's credibility in two ways.
First, Buchanna contends that in response to Rozman's criticism of the
mechanical interlock device, Buchanna asked if anything could have been
added to the machine to make it safer. Id. at 386.     When Rozman responded
that devices to electronically stop the motor were available in the 1980's,
Buchanna introduced an ANSI standard, approved in 1978, that mentioned
electronic brakes. Id. at 389.      Second, Buchanna had Rozman read part of
a 1978 standard applying to radial arm saws which stated that stopping
blade rotation with a piece of wood should be prohibited.      Id.


    Diehl contends that admission of the irrelevant subsequent standards
was unfairly prejudicial because it implied that Diehl failed to meet the
industry standard of applying a blade brake and the error was compounded
by the fact that the standard applied to radial arm saws rather than
industrial straight line ripsaws.    Diehl relies on White v. Clark Equipment
Co., 553 S.W.2d 280 (Ark.




                                      -8-
1977), to contend that the evidence was irrelevant and should not have been
admitted.    In White, a man was fatally injured when a trailer moved away
from a warehouse dock as he was backing a forklift out of the trailer.       The
forklift he was driving fell backwards on him.       The trailer manufacturer
was one of the defendants that the wife of the deceased sued in the
wrongful death action.       The trial court refused to admit a United States
Department of Transportation regulation promulgated after the manufacture
of the trailer and after the accident occurred.     On appeal, the court held
that   the   evidence had no relevance to the question of whether the
manufacturer had exercised ordinary care in its design and manufacture of
the trailer.   Id. at 281.    The court further held that the probative value
of the subsequent regulation in impeaching the manufacturer's expert
witness was outweighed by the danger of unfair prejudice.        Id.


         In this case, the relevance and the prejudicial effect of this
evidence are close questions, especially given the question of whether this
standard applied to industrial ripsaws or only to radial arm saws.         Diehl
had an opportunity to address these issues on Mr. Rozman's re-direct
examination, however.    See Trial Transcript at 396.    Therefore, we cannot
say that the   trial court abused its discretion in admitting the evidence.


       Even if admission of this evidence were an abuse of discretion, we
find that it was harmless error pursuant to Federal Rule of Civil Procedure
61 because, viewed in context of the entire trial, its admission did not
affect    Diehl's   substantial   rights.    Moreover,   as   discussed   above,
substantial evidence other than the subsequent standards supported the
jury's verdict in this case. See Brown v. LaCreek Electric Association,
Inc., 939 F.2d 623, 625 (8th Cir. 1991) (holding exclusion of evidence was
harmless error because substantial evidence supported the jury's verdict).


                                       IV.




                                       -9-
     Diehl's third argument on appeal is that the trial court erred by
suggesting and allowing Buchanna's counsel to voir dire her on her
cross-examination and making clarifying comments of its own in the presence
of the jury.    Diehl contends that this conduct created an appearance of
partiality by the court toward the plaintiff.    Because Diehl did not object
to the court's actions at trial, the judgment may be reversed on this
ground only if it is found to be plain error.      Mitchell v. Kirk, 20 F.3d
936, 937 (8th Cir. 1994).    Plain error is an error that "almost surely
affected the outcome of the case".    Champagne v. United States, 40 F.3d
946, 947 (8th Cir. 1994)(quoting Angelo v. Armstrong World Industries,
Inc., 11 F.3d 957, 961 (10th Cir. 1993)).       Having reviewed the relevant
portion of the transcript, we conclude that the trial court's actions did
not affect the outcome of the case and, thus, did not constitute plain
error.


                                     V.


         In sum, we conclude that the trial court did not err in denying
Diehl's motion for judgment as a matter of law, did not err in admitting
the subsequent industry standards and did not commit plain error by
creating an appearance of partiality toward the plaintiff.      Accordingly,
we affirm the judgment of the district court.


BEAM, Circuit Judge, dissenting.


     Use of evidence of the modification of the saw by Diehl's customer,
Bassett, the modification occurring at least twelve years after sale of the
saw and the commencement of its use, as proof of a design defect existing
at the time of earlier sale, was prejudicial error.    Thus, I would reverse
the case and remand the matter for a new trial.


     As noted by the court, the saw was manufactured in 1968 and




                                   -10-
was sold to Buchanna's employer at least twelve years (and probably many
additional years) prior to 1992, the year of the accident.        After the
accident, and without Diehl's knowledge, Buchanna's employer extended a
shaft through the clean-out door and created a whirling T-bar arrangement
designed to prohibit opening the door while the saw blade was in motion.


         This, Buchanna contends and the court agrees, was a "subsequent
remedial measure" admissible as substantive evidence of a defect in the saw
under this circuit's analysis of Federal Rule of Evidence 407.   See Robbins
v. Farmers Union Grain Terminal Ass'n, 552 F.2d 788, 793-95 (8th Cir.
1977).3 Federal Rule of Evidence 407 is, however, in no way applicable to
a modification made by a customer of the manufacturer, especially when the
alteration is made many years after the sale of the product and without the
manufacturer's knowledge.   The admissibility, or not, of this evidence is
governed by Federal Rules of Evidence 402 and



     3
       Only the Tenth Circuit has embraced the reasoning in
Robbins and then only partially. Nine other circuits have
squarely rejected Robbins and exclude proof of subsequent
remedial measures when offered as substantive evidence of a
defect in a product. See Raymond v. Raymond Corp., 938 F.2d
1518, 1522 (1st Cir. 1991); In re Joint E. Dist. and S. Dist.
Asbestos Litig. v. Armstrong World Indus., 995 F.2d 343, 345-46
(2d Cir. 1993); Cann v. Ford Motor Co., 658 F.2d 54, 60 (2d Cir.
1981), cert. denied, 456 U.S. 9670 (1982); Kelly v. Crown Equip.
Co., 970 F.2d 1273, 1275 (3d Cir. 1992); Werner v. Upjohn Co.,
628 F.2d 848, 856-58 (4th Cir. 1980), cert. denied, 449 U.S. 1080
(1981); Grenada Steel Indus. v. Alabama Oxygen Co., 695 F.2d 883,
886-89 (5th Cir. 1983); Bauman v. Volkswagenwerk
Aktiengesellschaft, 621 F.2d 230, 232-33 (6th Cir. 1980);
Flaminio v. Honda Motor Co., 733 F.2d 463, 468-70 (7th Cir.
1984); Gauthier v. AMF, Inc., 788 F.2d 634, 636-37, modified, 805
F.2d 337 (9th Cir. 1986); Wood v. Morbark Indus., 70 F.3d 1201,
1206-07 (11th Cir. 1995). Further, the Judicial Conference of
the United States has now recommended to the Supreme Court that
Rule 407 be amended to specifically extend the exclusionary
effect of the Rule to proof of "a defect in a product, a defect
in a product's design, or a need for a warning or instruction,"
thus, directly overruling Robbins when and if the change is
ultimately adopted by the Court and Congress. Report of the
Judicial Conference Cormnittee on Rules of Practice and
Procedure, September 1996.

                                   -11-
403.   The question is:   are the facts relevant and, if relevant, are they
or are they not unfairly prejudicial? In this case, evidence of this poorly
conceived and dangerous customer modification was barely, if at all,
relevant and clearly inadmissible according to any reasonable test under
Rule 403.


       Rule 407 is a rule of exclusion and not inclusion and it so states.
The Rule clearly deals with the conduct of a tortfeasor or defendant
manufacturer or seller, not a third person not a party to the litigation.
Indeed, as the advisory note to the Rule states, the policy underlying the
Rule is to promote measures that will lead to safer products even when a
defendant believes he or she is not guilty of culpable conduct.     As noted
in Weinstein's Evidence:
       [b]ecause the controlling ground for excluding [subsequent
       remedial] evidence has been the promotion of the policy of
       encouraging people to take safety precautions, remedial
       measures carried out by persons not party to the suit are not
       covered [by Rule 407]. Since the person taking the remedial
       measures is not affected by having the evidence admitted as an
       admission of fault, the admissibility of the evidence should be
       governed bythe general relevancy requirements of Rules 401-403
       rather than Rule 407.

2 Jack B. Weinstein, et al., Weinstein's Evidence § 407[01] at 407-11
(1992).


       The court cites O'Dell v. Hercules.   Inc., 904 F.2d 1194, 1204 (8th
Cir. 1990) for the proposition that subsequent measures by a third party
are an exception to the exclusionary force of Rule 407. O'Dell, if not in
error on the point, is wholly inapposite to this case.      First, since the
evidence at issue in O'Dell was excluded and not admitted under an
exception to Rule 407, the statement from O'Dell is pure obiter dictum.
Id. at 1203.    Second, the statement, citing as its source Farner v. Paccar,
Inc., 562 F.2d 518 (8th Cir. 1977), is an incorrect analysis of the holding
in Farner.     While the Farnar court parrots (and overstates) Robbins, the
essential holding was that Rule 407 was inapplicable to a determination of




                                     -12-
the admissibility of this type of evidence.        The court correctly held that
the third-party modification "was not barred by Fed. R. Evid. 407." Farner
562 F.2d at 528.      But, as pointed out in Weinstein, the evidence was
admissible because it was relevant to one or more of the issues in the
litigation not because Farner was a products liability case unaffected by
exclusions contained in Rule 407. Id. ("We . . . conclude that the evidence
of . . . [third party's] subsequent installation of safety chains, was
relevant to the issue of [Paccar's] defective design.") Id.               Relevance
under Rule 402 (not admissibility under Rule 407) is the question to be
considered in this appeal.


     Thus, the post-1992 modification of the saw by Bassett was not made
admissible by Rule 407.     Evidence of Bassett's alteration should have been
admissible only if it provided relevant proof of a defect in Diehl's 1968
design.    It   did   not   and   the   evidence   should   have   been   excluded.
Accordingly, I dissent.


A true copy.


     Attest:


           CLERK U.S. COURT OF APPEALS EIGHTH CIRCUIT.




                                        -13-
