Unpublished Disposition, 904 F.2d 710 (9th Cir. 1990)

MEMORANDUM^** 

The plaintiffs, James and Dorris Lairmore, appeal from the district court's denial of their motion for a new trial following a jury verdict and entry of judgment for the defendant in this product liability case. James and Dorris Lairmore sued Lederle in their own right and James sued on behalf of their infant daughter Leanna Lairmore who suffered permanent injuries following her ingestion of a medication manufactured by Lederle. Leanna was sixteen months old at the time of her injury.

The Lairmores assert that the district court erred by instructing the jury over their objection to consider Lederle's defense that it was not reasonably foreseeable for Lederle to anticipate that a parent would negligently leave a toxic medication where a child could reach it and become injured. The court charged the jury as follows:

Second, if you find that the sole cause of the accident was an unforeseeable misuse of the product by Dorris Lairmore, then your verdict must be for the defendant.

Lederle argues that Section 12-683 of the Arizona Revised Statutes requires that the issue of reasonable foreseeability be submitted to the jury. While this might be true if there were evidence in the record to support a finding of unforeseeability, it is error to ask the jury to determine an issue where there is no factual dispute and no evidence suggesting unforseeability. Abundant uncontradicted evidence in the case disclosed that Lederle was fully aware of the possibility of adults negligently leaving medications within reach of small children. Lederle's own witnesses admitted knowledge of injury to children occurring on a widespread basis because of negligence by adults in leaving toxic medications within reach of children. A jury should not be instructed to make a finding on an issue that is not in dispute.

The court also concludes that the district court erred by permitting a nurse to testify over the plaintiffs' objections as an impeachment witness following Dorris Lairmore's testimony. Permitting this testimony violated Rule 608(b), Fed.R.Evid., and prejudiced the plaintiffs' case by focussing on Dorris Lairmore's negligence in a manner that could have been understood by the jury to affect the claim on behalf of Leanna as well as that of Dorris. Any contributory negligence on the part of Dorris could not be imputed to Leanna, but would affect only Dorris's individual claim.

Lederle also argues that the notice of appeal did not name all of the appealing parties as required by Rule 3(c) of the Federal Rules of Appellate Procedure. Nevertheless, the notice did state that the "plaintiffs" appeal from the judgment of the district court. Under the law of this Circuit, even though the caption of the notice of appeal listed only James Lairmore as an appellant and used "et al.", the statement within the body of the notice cured this defect and brought the appeals of all three plaintiffs to this court. National Center for Immigrant's Rights v. I.N.S., 892 F.2d 814, 816-17 (9th Cir. 1989).

The judgment of the district court is REVERSED and the case is REMANDED for a new trial.