Unpublished Disposition, 877 F.2d 64 (9th Cir. 1989)

MEMORANDUM^** 

Deborah LaMonica suffers from lung disease. LaMonica sued the defendants in this diversity action under theories of negligence and product liability. LaMonica argued at trial that her injuries were caused by exposure to an industrial version of the aerosol cooking product PAM at her work site. The jury returned a verdict in favor of the defendants. Judgment was entered on the jury verdict and LaMonica timely appeals. LaMonica contends that the judgment must be reversed on the ground that the jury instructions were flawed and that the district court impermissibly restricted her rebuttal witness' testimony. We affirm.

LaMonica first contends that the district court improperly restricted her examination of Dr. David S. Covert and that this alleged error requires reversal. After complete review of the trial transcript, we cannot agree. Covert was not a witness in plaintiff's case in chief. He was called as a rebuttal witness after the defense presented evidence that LaMonica's exposure to PAM was insufficient to account for the quantity of oily substances found in her lungs by her treating physicians. Defense counsel objected that Covert's testimony was not proper rebuttal evidence and should not be permitted. The district court overruled the objection and permitted the testimony.

LaMonica's counsel then conducted direct examination and fully explored Covert's conclusion, formed on the basis of laboratory modeling and testing of LaMonica's exposure to PAM, that LaMonica was exposed to PAM in sufficient quantities to account for her lung disease. Covert was cross-examined. On redirect, LaMonica's counsel again questioned Covert regarding the laboratory modeling and testing which formed the basis for his testimony. During Covert's redirect testimony the court sua sponte requested counsel to approach the bench. The court stated to counsel that Covert's testimony was of marginal value and quality and that LaMonica's counsel was "skating on thin ice". The court stated that it was considering the striking of Covert's testimony and implied that counsel should stop questioning Covert. LaMonica's counsel then stopped questioning Covert. No objection to the court's sidebar comments was made. Covert was then recrossed. After recross, LaMonica's counsel declined the court's invitation to question Covert once again. LaMonica now claims error.

A district court has broad discretion in managing the conduct of a trial. Penk v. Oregon, 816 F.2d 458, 465 (9th Cir. 1987). We review objections to a judge's management of a trial and the admission of evidence for an abuse of discretion. Kotz v. Bache Halsey Stuart, Inc., 685 F.2d 1204, 1208 (9th Cir. 1983). LaMonica's claim that she was denied the presentation of rebuttal evidence is unsupported by the record.

Defense counsel's objection to Covert's testimony was overruled. LaMonica's counsel fully and completely questioned Covert on direct examination. He rested his redirect examination without objection to the court's sidebar comments. He later declined an invitation to elicit further testimony. The rebuttal testimony was presented to the jury without any limiting instruction or adverse comment by the district court on the Covert testimony. There is thus no basis to the claim that rebuttal testimony was improperly denied. Cf. Benedict v. United States, 822 F.2d 1426, 1430 (6th Cir. 1987) (complete shut off of proper rebuttal evidence was error). We conclude that the district court did not abuse its discretion in the manner in which it allowed Covert's testimony to unfold.

LaMonica argues that the district court erred in presenting flawed jury instructions and refusing to submit proposed jury instructions. LaMonica excepts to the instructions actually given to the jury at trial, as well as the district court's failure to give instructions proposed by LaMonica.

We review instructions given by the trial court to determine if they are an accurate reflection of the law and enable the jury intelligently to decide the issues placed before it. Maxwell v. Hapag-Lloyd AG., 862 F.2d 767, 768 (9th Cir. 1988).

If the instructions on each element are adequate to ensure that the jury understands the issues, no particular formulation is necessary. The trial court is not required to adopt an instruction requested by a party if the instructions given allow the jury intelligently to determine the issues.

Id. (internal citations omitted). We look to the instructions as a whole to determine whether the jury was adequately instructed. Underhill v. Royal, 769 F.2d 1426, 1433 (9th Cir. 1985). We review de novo a district court's failure to submit a proper instruction; the failure to submit a proper and required instruction is reviewed for harmless error. Hasbrouck v. Texaco, 830 F.2d 1513, 1523 (9th Cir. 1987).

LaMonica first contends that the district court erred in failing to give an instruction regarding a manufacturer's duty to test and inspect its products in order to ensure that they are reasonably safe. Such an instruction has been given in Washington courts. See, e.g., Lockwood v. AC & S, Inc., 109 Wash. 2d 235, 256, 744 P.2d 605 (1987) (duty to test and inspect instruction given); see also Ewer v. Goodyear Tire & Rubber Company, 4 Wash. App. 152, 161, 480 P.2d 260 (1971) (discussing duty to test and inspect). The Washington courts have not, however, held that such an instruction must be given. Assuming, arguendo, that the duty to test and inspect has survived the legislative changes to Washington product liability law, Wash.Rev.Code Secs. 7.72.010 et seq., we nevertheless find no reversible error.

The district court instructed the jury, without objection, on the substantive elements of the tort theories on which LaMonica sought to recover. Testimony at trial focused heavily upon whether PAM could have caused injuries of the type exhibited by LaMonica. Extensive testimony was adduced at trial concerning the state of scientific knowledge concerning the possible dangers of PAM. LaMonica's counsel was permitted to and did argue that the defendants knew or should have known of a danger and failed to warn consumers of the danger.

After reviewing the testimony and the instructions, we conclude that the jury was able to decide LaMonica's theories of liability in an intelligent manner. Accordingly, we find no error in the district court's refusal to give LaMonica's proffered duty to test instruction.¹ 

LaMonica next contends that the district court erred in failing to provide an instruction that manufacturers of food products are held to a higher duty of care than manufacturers of non-food products. LaMonica relies upon case law from early in the twentieth century for this argument. The district court did not err in recognizing that modern tort principles have superceded the earlier case law and that such an instruction is no longer proper. Gates v. Standard Brands Inc., 43 Wash. App. 520, 527 & n. 9, 719 P.2d 130 (1986).

LaMonica next contends that the district court erred in failing to instruct the jury that the failure of the defendants to foresee the extent of harm or manner in which the harm occurred would not relieve them of liability. The district court correctly rejected this instruction as it is only appropriate when a superceding intervening cause issue is before the jury. See Campbell v. ITE Imperial Corp., 107 Wash. 2d 807, 733 P.2d 969 (1987).

LaMonica lastly contends that the court's proximate cause instruction was erroneous because it allowed the jury to speculate on a superceding cause when that issue was not before the jury. This argument is meritless. The Washington Supreme Court defines proximate cause in language nearly identical to that used to charge the jury in this case. See, e.g., Alger v. City of Mukilteo, 107 Wash. 2d 541, 545-46, 730 P.2d 1333 (1987) (en banc) (citing cases). The instruction properly stated the law of proximate causation in Washington and there was no error.

AFFIRMED.