                      United States Court of Appeals
                              FOR THE EIGHTH CIRCUIT
                                      ___________

                                      No. 97-2367
                                      ___________

Jeffrey Hutchison,                         *
                                           *
              Appellant,                   *
                                           * Appeal from the United States
       v.                                  * District Court for the Western
                                           * District of Missouri.
Urschel Laboratories, Inc.,                *
                                           *
              Appellee.                    *
                                           *
                                      ___________

                                   Submitted: April 13, 1998
                                       Filed: October 7, 1998
                                     ___________

Before WOLLMAN, BEAM, and MORRIS SHEPPARD ARNOLD, Circuit Judges.
                           ___________

BEAM, Circuit Judge.

      In this products liability action, Jeffrey Hutchison appeals a jury's verdict in favor
of Urschel Laboratories, Inc., the manufacturer of a piece of machinery that Hutchison
was using when he was injured at work. Hutchison argues that the district court1 erred
in not directing judgment in his favor on the issue of liability and in admitting certain
evidence. We find no error and therefore affirm.

       1
       The Honorable James C. England, United States Magistrate Judge for the
Western District of Missouri, presiding with consent of the parties pursuant to 28
U.S.C. § 636(b)(4)(c)(1).
I.    BACKGROUND

        Hutchison worked at the Tyson Foods chicken processing plant in Neosho,
Missouri. His job was to place rolls of processed chicken into a machine that cut the
rolls into slices. These slices were dropped onto a conveyor belt which carried the
slices to a dicing machine. The conveyor belt lobbed the chicken through the air and
the slices fell into a dicer which cut them into cubes and dropped the chicken onto
another conveyor belt for further processing. If all worked well, the slices of chicken
fell directly into the cutting area. Occasionally the slices did not fall directly into the
cutting part of the machine, and an employee would take a Teflon "wand" and push
down the chicken that had stuck to the sides of the opening. While doing this,
Hutchison slipped, and his hand was pulled into the dicer, causing severe injuries.

       Urschel manufactured the dicing machine in 1972. The standard Urschel dicer
was designed to be fed manually with an operator pushing the food to be diced into an
opening. Therefore, the opening was relatively small and had a safety bar placed inside
the opening to prevent workers from inadvertently placing their hands too close to the
cutting part of the machine. However, this standard-sized opening and safety bar
feature was not compatible with the existing automated line in Neosho. Therefore,
Tyson had specially ordered this dicer, serial number 433, with an oversized opening
and without a safety bar. Urschel did not manufacture any of the other equipment in
this system and did not design the overall assembly-line process. In fact, when it
shipped dicer 433, Urschel had included a letter to Tyson that the larger opening was
potentially dangerous, and that after the dicer was integrated into Tyson's existing line,
the opening should be guarded to prevent workers from being able to reach moving
parts with their hands.

       Hutchison sued Urschel in Missouri state court, alleging that the dicer was in a
defective condition when it left Urschel's plant in 1972, and that it was unreasonably
dangerous when used in the reasonably anticipated manner. The case was removed to

                                           -2-
federal district court pursuant to 28 U.S.C. § 1446. After a three day trial, the jury
returned a verdict in favor of Urschel. Hutchison appeals.

II.   DISCUSSION

      Hutchison's first claim on appeal is that the district court should have directed
judgment in his favor on the issue of liability pursuant to Federal Rule of Civil
Procedure 50 because Urschel admitted that dicer 433 was unreasonably dangerous.
Hutchison relies on Urschel representatives' repeated admissions that the dicer was
dangerous. Hutchison also places a great deal of emphasis on a letter written by
Urschel to Tyson in 1972, wherein Urschel warns that the machine is potentially "very
dangerous."

       Hutchison confuses "dangerous" with "unreasonably dangerous." Although
Urschel did concede that dicer 433 was dangerous, it never admitted that it was
unreasonably dangerous. A plaintiff must prove unreasonable danger in order to
establish liability. See Nesselrode v. Executive Beechcraft, Inc., 707 S.W.2d 371, 375
(Mo. 1986) (en banc) (to recover in strict liability a plaintiff must establish that the
product is unreasonably dangerous).

        Hutchison also argues that he was entitled to judgment on liability because dicer
433 did not meet the National Safety Counsel Guideline guarding standards. The
standards at issue here, however, were promulgated in 1994. Dicer number 433 was
manufactured and shipped in 1972. A machine's failure to meet safety standards that
were promulgated more than twenty years after its manufacture does not establish
liability per se.

      Hutchison argues that the liability issue was erroneously clouded when the trial
court admitted evidence that Tyson had ordered this machine with a larger than
standard opening. It is uncontested that Tyson special ordered the dicer. However,

                                          -3-
Hutchison claims that in presenting this evidence, Urschel was trying to shift to Tyson
its non-delegable duty to manufacture reasonably safe equipment. Hutchison points to
Urschel's position at trial that it was Tyson's duty to place guards on this machine once
it was incorporated into the existing processing line.

       Contrary to Hutchison's view, the record shows that Urschel's evidence was
directed toward whether it was feasible for Urschel to design guards when dicer 433
would later be integrated into an existing processing line. There was testimony that it
is standard industry practice for the end-user to incorporate safety features when
machinery will be used in an integrated line. The defense expert testified that it would
be impossible for Urschel to adequately guard a dicer that was to be used as part of an
unfamiliar assembly line that Urschel had not designed. Thus, this was not an attempt
on Urschel's behalf to shift responsibility, but an attempt to establish a defense based
on feasibility.

       Hutchison additionally argues that the trial court erred in admitting a picture of
a similar machine that was in operation in another Tyson plant. This dicer, serial
number 593, had been ordered with the standard features. However, some time after
delivery, Tyson had enlarged the opening and removed the safety bar. Hutchison
argues that admitting this evidence was reversible error because the condition of dicer
593 was legally irrelevant and unduly prejudicial. Hutchison, however, first injected
dicer 593 into the trial by offering a picture of dicer 593 into evidence. Hutchison's
expert testified that he drew conclusions about the defectiveness of dicer 433 after
watching dicer 593 in action. The expert admitted on cross-examination that he was
not aware that the dicer's opening had been enlarged. Once Hutchison tried to use dicer
593 to prove that dicer 433 was unreasonably dangerous, Urschel was entitled to
explain that dicer 593 had been modified since its manufacture. Furthermore, this
evidence was highly relevant to the issue of feasibility—it showed that Tyson was in
a better position to know how these dicers were used in its processing lines, and that
Tyson had the ability to modify the machines to meet those unique needs.

                                          -4-
        Hutchison's final claim on appeal is that the court erred in allowing evidence that
there have been no previous accidents with dicer 433. Urschel elicited testimony that
witnesses knew of no prior accidents involving the dicer. Tyson's vice president
testified that he was informed of all serious accidents in Tyson's production plants. He
also stated that he was not aware of any other accident involving dicer 433. Hutchison
argues that there could have been minor incidents which were not reported. However,
counsel was allowed to argue this point to the jury at trial. Even if admitting this
evidence were error, which we doubt, we are confident that it was harmless.

III.   CONCLUSION

      We have considered each of Hutchison's remaining arguments and find them to
be without merit. For the foregoing reasons, the decision of the district court is
affirmed.

       A true copy.

             Attest:

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




                                           -5-
