                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                         UNITED STATES COURT OF APPEALS
                                                                           APR 7 1999
                                    TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

 MAE ENFIELD, conservator and
 natural mother of JERRY ALLEN
 ENFIELD,
                                                        No. 97-3377
           Plaintiff-Appellee,                     (D.C. No. 94-CV-1423)
 vs.                                                      (D. Kan.)

 A.B. CHANCE COMPANY and
 EMERSON ELECTRIC COMPANY,

           Defendants-Appellants.

 ----------------------

 CITY OF GOODLAND, KANSAS,

           Intervenor.


                                 ORDER AND JUDGMENT *


Before KELLY, MCKAY, and LUCERO, Circuit Judges.


       Plaintiff-appellee Jerry Allen Enfield was injured in 1992 by a utility pole

that broke and fell on him while it was being removed from the ground. The

injury occurred when the boom of a Pitman Polecat digger-derrick (“Polecat”),


       *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
manufactured by Defendant-appellant A.B. Chance, collapsed while removing the

pole from the ground. The boom was fastened to the mainframe of the Polecat

with twenty-four bolts. These bolts broke, causing the boom to separate from the

mainframe. The weight of the collapsing boom snapped the pole, causing it to

fall on Mr. Enfield. Mr. Enfield brought this personal injury products liability

diversity action based on Kansas law in September of 1994. A jury found A.B.

Chance fifty-percent responsible for Mr. Enfield’s injuries, and final judgment

was entered against it in the amount of $1,733,002 with interest. A.B. Chance

appeals from the judgment and claims that the district court erred by: (1)

admitting proof of other accidents; (2) admitting evidence of subsequent use of

the Polecat; and (3) improperly instructing the jury. The parties are familiar with

the facts, and we discuss them further only as necessary to resolve the issues on

appeal. Our jurisdiction arises under 28 U.S.C. § 1291, and we affirm.



                             A. Evidentiary Challenges

      A.B. Chance alleges that the district court committed the following errors

in admitting proof of other accidents: (1) failing to require evidence that the

other accidents were substantially similar before admitting them; (2) admitting

evidence of other accidents through Defendant’s expert witness contrary to the

requirements of Fed. R. Evid. 703; and (3) admitting a Product Liability Task


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Force Report without finding substantial similarity of the accidents discussed in

the report and without properly conducting a Fed. R. Evid. 401 and 403 analysis.

In addition, A.B. Chance contends that the district court committed the following

errors in refusing to admit evidence regarding the Intervenor City of Goodland’s

(“the City”) subsequent use of a pole puller: (1) misapplying Fed. R. Evid. 407 to

the admission of the evidence; (2) misapplying Rule 407 to rebut the City’s claim

that using a pole puller was not feasible; (3) misapplying Rule 407 because the

purpose of the rule is to protect potential defendants, not third parties like the

City. We do not overturn a district court’s decision to admit or exclude evidence

absent an abuse of discretion, see McCue v. Kansas, 1999 WL 5064, at *3 (10th

Cir. 1999), and then, only if a substantial right of a party is affected. See Fed. R.

Evid. 103; Coletti v. Cudd Pressure Control, 165 F.3d 767, 776 (10th Cir. 1999);

Gomez v. Martin Marietta Corp., 50 F.3d 1511, 1518 (10th Cir. 1995).



1. Proof of Other Accidents

      Evidence of other accidents in a product liability case may be admitted to

show notice or defect, provided that the party offering the evidence demonstrates

that “the circumstances surrounding the other accidents were substantially similar

to the accident involved in the present case.” Wheeler v. John Deere Co., 862

F.2d 1404, 1407 (10th Cir. 1988). Whether accidents are substantially similar


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depends, in part, upon the theory of the case. See id.; Ponder v. Warren Tool

Corp., 834 F.2d 1553, 1560 (10th Cir. 1987). However, the accidents need only

be substantially similar, not exactly the same; the differences between the

accidents not affecting their substantial similarity go to the weight of the

evidence, not to its admissibility. See Wheeler, 862 F.2d at 1408.

      Here, the district court found that the six accidents were relevant and

substantially similar to the accident at issue after receiving briefs and hearing

arguments with respect to the admission of this evidence. After reviewing the

record, we find that the district court did not abuse its discretion in its ruling. All

six accidents occurred prior to Mr. Enfield’s accident, and all involved the same

component parts. See VI R. at 1884. Although the accidents did not occur in

exactly the same manner as Mr. Enfield’s accident, precise similarity is not

required.

      A.B. Chance relies on this court’s holding in Julander v. Ford Motor Co.,

488 F.2d 839 (10th Cir. 1973), to support its argument that the court cannot admit

evidence of the other accidents when the admission is based solely on similar

component parts. However, the court in Julander excluded the evidence because

there was no proof that the accidents occurred prior to the accident at issue and,

thus, evidence of the accidents was not justified to prove notice. See id. at 846.

While the Julander court could not determine “whether the precise problem


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encountered by the seven complainants was the same as that claimed to have been

encountered by [the plaintiff],” the court’s holding did not rely on the lack of

similarity of the problems. Id.

      In this case, all six accidents occurred prior to Mr. Enfield’s accident; three

occurred prior to the 1981 manufacture of the Polecat at issue, and three occurred

after. See VI R. at 1884. A.B. Chance contends that evidence of the three

accidents that occurred after the 1981 manufacture date should not have been

admitted because Mr. Enfield did not allege that A.B. Chance had any post-

manufacture obligations. Plaintiff presented evidence of the six similar accidents

in his case-in-chief. At the end of Plaintiff’s case in chief, the district court

dismissed Plaintiff’s warning and warranty claims. See II R. at 631-32. At this

point, A.B. Chance failed to request a limiting instruction regarding the three

accidents that occurred after 1981. These dismissed claims did involve some

post-manufacture, pre-accident obligations on A.B. Chance’s part. Therefore, the

district court did not abuse its discretion in admitting both the pre- and post-

manufacture accidents.

      A.B. Chance also contends that the district court erred in admitting

evidence of these other accidents through Mr. Enfield’s expert witness, contrary

to the requirements of Fed. R. Evid. 703. This contention is without merit. The

court had already ruled the evidence of the prior accidents admissible as relevant


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evidence. Thus, Rule 703 does not apply because the expert’s opinion was based

on admissible evidence, not “otherwise inadmissible hearsay.” Daubert v. Merrell

Dow Pharmaceuticals, Inc., 509 U.S. 579, 595 (1993) (emphasis added).

Therefore, admission of the evidence was not improper, and the district court did

not abuse its discretion in allowing the expert to rely on the accidents already

found to be substantially similar to the accident at issue.

      The trial court admitted a redacted version of A.B. Chance’s internal

Product Liability Task Force Report, finding that it was relevant to show notice of

prior accidents. See II R. at 383-86. A.B. Chance argues that the trial court erred

in admitting the Report without finding substantial similarity of the accidents and

without properly weighing the evidence under Fed. R. Evid. 401 and 403. We

find that the district court did not abuse its discretion in admitting the Report.

First, the court reviewed the entire Report and only permitted Plaintiff to use the

portions it determined to be relevant. See II R. at 383-86; see also Fed. R. Evid.

401. Second, the record reflects only a general relevance objection and shows

that the district court carefully considered Rule 403 factors in determining which

portions of the Report to admit. See II R. at 383-86. The court’s determination

that the Report had probative value was clearly not an abuse of discretion.

Likewise, the trial court carefully considered the question of similarity and

concluded that, in fact, the accidents were of a similar nature. We fail to see an


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abuse of discretion as argued.



2. Evidence of the City’s Subsequent Use of a Pole Puller

      A.B. Chance argues that the district court erred by refusing to admit

evidence that, after Mr. Enfield’s accident, the City began using a pole puller in

compliance with A.B. Chance’s operating manuals. A.B. Chance argues that the

district court improperly excluded the evidence based on Fed. R. Evid. 407,

instead of Kansas law. Because A.B. Chance failed to raise the application of

Kansas law to the district court, we will not consider the issue for the first time

on appeal. See Tele-Communications, Inc. v. Commissioner, 12 F.3d 1005, 1007

(10th Cir. 1993). A.B. Chance also contends that, given Rule 407, the court

abused its discretion in refusing to admit the evidence. After carefully reviewing

all of A.B. Chance’s arguments and the record, we find that the district court did

not abuse its discretion in declining to admit evidence on the City’s subsequent

use of a pole puller.



                                 B. Jury Instructions

      A.B. Chance alleges that the district court committed the following errors

in instructing the jury: (1) instructing the jury that a manufacturer has a “strict

duty of care” which improperly states Kansas law and misled the jury; (2)


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instructing the jury that evidence of a later-issued standard was irrelevant; (3)

declining to include A.B. Chance’s proposed jury instruction on substantial

change or alteration to the polecat by the City. In a diversity case, the

determination of the substance of a jury instruction is a matter of state law, but

the grant or denial of an instruction is a procedural matter controlled by federal

law. See Dillard & Sons Constr., Inc. v. Burnup & Sims Comtec, Inc., 51 F.3d

910, 915 (10th Cir. 1995). We review de novo whether the district court's

instructions, considered as a whole, properly stated the applicable law and

focused the jury on the relevant inquiry. Medlock v. Ortho Biotech, Inc., 164

F.3d 545, 552 (10th Cir. 1999). “The instructions need not be entirely free from

fault, but they may not serve to mislead the jury in any way.” Dillard & Sons

Constr., Inc., 51 F.3d at 915.



1. Strict Duty of Care Instruction

      A.B. Chance contends that the district court erred in instructing the jury

that a manufacturer has a “strict duty of care” because the instruction improperly

states Kansas law. However, this court has previously found that Kansas strict

liability law includes such a duty and has upheld similar jury instructions. See

Wheeler, 862 F.2d at 1412; Prince v. Leesona Corp., 720 F.2d 1166, 1171 n.9

(10th Cir. 1983); Hardin v. Manitowoc-Forsythe Corp., 691 F.2d 449, 455 (10th


                                         -8-
Cir. 1982). Under the principles of stare decisis, we must abide by these

holdings. See United States v. Brooks, 161 F.3d 1240, 1247 (10th Cir. 1998). In

light of this court’s previous holdings and after analyzing the instruction as a

whole, we find that this instruction adequately reflects Kansas law.



2. Later-Issued Standard Instruction

      A.B. Chance argues that the district court erred in including the following

instruction:

               Proof of compliance with a standard that was in effect at the
      time of manufacture is not a defense to a charge of negligence unless
      such practice is consistent with standards or ordinary care. For
      example, a manufacturer’s compliance with a standard that was in
      effect at the time of manufacture is not dispositive under Kansas law
      if it is shown that a reasonable manufacturer would have done more.
               A standard that was issued and became effective after the date
      of manufacture is not relevant and should not be considered by you
      on the question of whether defendant exercised ordinary care.

IV R. at 1461. In particular, A.B. Chance objects to the last sentence of the

instruction. After considering the instruction as a whole, we conclude that it is

consistent with Kansas law and the district court did not err in giving it to the

jury. See Rexrode v. American Laundry Press Co., 674 F.2d 826, 832 (10th Cir.

1982) (finding, in a Kansas product liability case, standard that became effective

after the product’s manufacture date to be “at best remote.”).




                                         -9-
3. Refusal to Include A.B. Chance’s Instruction

      Finally, A.B. Chance asserts that the district court erred by refusing to

include its proposed instruction on substantial change or alteration. The proposed

instruction reads:

      A manufacturer is not liable when the cause of an accident was a
      substantial change or alteration in the product. A substantial change
      or alteration means that the configuration or operational
      characteristics of the product are changed or altered by affirmative
      conduct of some person in a manner that the defendant could not
      reasonably have foreseen would occur in the intended or foreseeable
      use of the product.

IV R. at 1347. A.B. Chance claims that the court’s failure to include the

instruction left the jury with “the impression that substantial alteration was merely

a factor to consider in assessing comparative fault, rather than being a bar to any

liability on the part of A.B. Chance.” Aplt. Br. at 47-48. Again, we review the

court’s instructions “as a whole to determine whether they properly stated the

applicable law and provided an ample understanding of the applicable standards.”

Dillard & Sons Contruction, Inc., 51 F.3d at 915.

      Under Kansas law, a manufacturer may not be held liable for a product’s

defective design where, after the product leaves the manufacturer’s possession or

control, there is an unforeseeable substantial modification to the product, and the

accident would not have occurred but for the substantial modification. See

Howard v. TMW Enterprises, Inc., 1998 WL 918320, at *6 (D. Kan. 1998);


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Mason v. E.L. Murphy Trucking Co., 769 F. Supp. 341, 345 (D. Kan. 1991).

Thus, we must determine whether the court’s instructions as a whole allowed the

jury to consider this defense.

      The charge given, considered as a whole, defines alteration in such a

manner as to allow the jury to draw the inference sought by the rejected

instruction. It is apparent that the district court regarded the alteration defense as

going to the general issue in the case and instructed the jury that there is no

liability if the product was not defective or substantially altered. See IV R. at

1462, 1464-65. The issue is not whether the instructions are faultless in every

particular, and while it would have been preferable to give A.B. Chance’s

proposed instruction, the instructions given to the jury allowed it to consider

alteration as a bar to liability. Such a theory was argued. See III R. at 1198,

1203, 1208-09. In these circumstances, we decline to find reversible error.

      AFFIRMED.



                                        Entered for the Court



                                        Paul J. Kelly, Jr.
                                        Circuit Judge




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