KRUEGER v GENERAL MOTORS CORPORATI
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No. 89-024 IN THE SUPREME COURT OF THE STATE OF MONTANA 1989 ------- ANDREW KRUEGER and SUZANNE KRUEGER, Plaintiffs and Respondents, GENERAL MOTORS CORPORATION, a Delaware Corporation, Defendant and Appellant. APPEAL FROM: District Court of the Eighth Judicial District Court, In and for the County of Cascade, The Honorable Thomas M. McKittrick, Judge Presiding. COUNSEL OF RECORD: For Appellant: Curtis G. Thompson; Jardine, Stephenson, Blewett & Weaver, Great Falls, Montana Richard A. Bowman, Argued, Kent B. Hanson and Kim M. Schmid; Bowman & Brooke, Minneapolis, Minnesota For Respondent: I0 N n t n- L a 2 LtJ A 4 3ennis Patrick Conner, Argued, Great Falls, Montana *grik B. Thueson, Helena, Montana rz :A1 L*l -"J " LJJ *'- : z ' 3 , m ; < 0" I a . U3 w;-Q 2 0 I --------------Submitted: October 16, 1989 Decided : Justice R. C. McDonough delivered the Opinion of the Court. This is an appeal from a jury verdict and judgment of the Eighth ~udicialDistrict, Cascade County, awarding general and special compensatory damages in a products liability case. Defendant General Motors Corporation [GM] appeals an award of the District Court of the ~ i g h t hJudicial District, Cascade County awarding the plaintiff Andrew Krueger (Krueger) damages in the sum of $1,293,430.00. The District Court found that GM's failure to warn regarding a defectively designed full-time four wheel drive transfer case was the proximate cause of plaintiff's injuries. We affirm. GM raises the following issues and specifications of error on appeal: 1) Did the District Court err in excluding evidence of videotaped tests conducted by the defendant's expert witness regarding the response of various types of transfer cases under conditions similar to the accident in question? 2) Did the District Court err in admitting evidence of other incidents involving the sudden rolling of vehicles equipped with the New Process Model 2 0 3 transfer case? 3) Did the District Court err in excluding evidence of plaintiff's prior drug convictions and alleged habitual drug use on the issue of plaintiff's life expectancy? 4) Did the District Court err in instructing the jury regarding the affirmative defense of assumption of the risk in products liability litigation? 5 Is there substantial evidence in the record to support the District Court's finding that GM's failure to warn was a proximate cause of Andrew Krueger's injuries? 6) Did the District Court err in admitting into evidence hearsay testimony and allowing plaintiff's arguments alleged by defendant to be based on hearsay statements? 7) Did the District Court err in overruling defendants objections to plaintiff's closing arguments requesting the jury to "send a message" to GM when punitive damages were not. an issue in the case? On February 17, 1983 Krueger experienced problems with the universal joint on the front drive shaft of a 1976 General Motors Chevrolet full-time four wheel drive pickup that he had borrowed from a friend, He drove the pickup t.o the Pit Stop, an auto repair shop in Great Falls owned by a friend, where he planned to remove the shaft and leave it for repairs. Krueger parked the truck on the sloping driveway outside the Pit Stop (approximately S f 0 ) and with the vehicle engaged in park proceeded to remove the front drive shaft. When Krueger disconnected the shaft the pickup began to roll down the slope of the driveway. The back of Krueger's head got caught in the front differential and was pulled forward on to his chest as the truck rolled over him. The accident broke Krueger's neck and severely damaged his spinal cord, rendering Krueger a quadriplegic. Prior to 1973, all GM four wheel drive vehicles were equipped with conventional transfer cases; with such transfer cases the rear drive shaft remains locked when the vehicle is in "park." This is necessary because with a conventional transfer case disengaged and the wheel hubs unlocked, as they normally would be on dry pavement, the vehicle is essentially a two wheel drive vehicle and would roll unless the rear drive shaft was locked. The pickup involved in this accident was equipped with a New Process Model 203 full-time four wheel drive transfer case, used in GM models with automatic transmissions from the years 1973 to 1979. On these vehicles, the "park" gear locks the power output shaft leading from the engine to the transfer case, to which the front and rear drive shafts are then connected. Because of cornering problems where the outer wheel must rotate faster than the wheels on the inside of the corner, a differential is needed to compensate for these two different rotation speeds. A differential makes this compensation by applying the engine's driving force through the path of least resistance. In a full-time four wheel drive vehicle, a third inter-axial differential, located in the transfer case, is needed to compensate for the difference in cornering speeds between the front and rear wheels. When either of the drive shafts is disconnected on a full-time four wheel drive, this inter-axial differential applies the locking force of the "park" gear through the path of least resistance to the drive shaft that is no longer connected, this allows all the vehicle's wheels, including those on the still connected axle and drive shaft, to roll freely. Thus, a vehicle equipped with a New Process Model 203 transfer case and engaged in "park" will begin to roll when a single drive shaft is removed or a single wheel is jacked off the ground. The only way to prevent this motion is to first engage the vehicle in "park" and then in four wheel drive "lock." Engaging "lock" on a full-time four wheel drive is similar to engaging the transfer case and locking the hubs on a conventional four wheel drive. It locks all wheels so they will turn at the same speed regardless of cornering distances, eliminatinq the function of the differential, and thus no one portion of the drive train can become a path of least resistance. As one can see, there is a great difference in the effect of putting a full-time versus a conventional four wheel drive pickup in park when the front drive shaft is disconnected. In the conventional models, "park" locked the rear drive shaft and that is all that had to be done. Rut in a vehicle equipped with the New Process Model 203 one had to place the transmission in "park" and also engage the transfer case in "lock," locking all four wheels and insuring that the vehicle was completely immobilized. During his service in the military, Krueger gained considerable experience and knowledge regarding the operation and repair of conventional four wheel drive vehicles. Krueger had also been employed as a drive line specialist for Glacier Motors in Cut Bank, Montana. During that time he built and repaired approximately 500 drive lines. Krueger's knowledge or lack thereof of the dangers in removing the front drive shaft on a full-time four wheel drive equipped with the New Process Model 203 and whether GM provided a reasonably safe transfer case design and/or a warning sufficient to avoid strict products liability were focal issues at trial. During trial, plaintiff advocated an alternative transfer case design, the Borg Warner Quadra Trac (used in Jeeps at the time), asserting that it would have prevented the accident. The Quadra Trac employs a limited-slip friction clutch in the transfer case to retain the traction that would be lost when all the power is transferred via the differential to the wheel experiencing the least resistance. The friction clutch requires an individual wheel or axle to experience a threshold amount of torque for the clutch to slip and allow the differential to work freely. Until the threshold level of torque is reached, such as when the inside wheel experiences resistance when cornering, both wheels will revolve at the same speed. Thus, when a single wheel is the only one powered, such as when one wheel spins out on ice or snow, the friction clutch provides a limited traction recovery to the other wheel until the spinning wheel regains its traction. A vehicle equipped with the New Process 203, on the other hand, would be unable to generate any traction and remain immobile. Friction clutches wear out quickly and are rarely maintained at the torque specifications level present when manufactured. Krueger argued that a properly maintained Borg Warner Quadra Trac transfer case would have prevented the accident because the friction clutch in the transfer case differential would have engaged the park gear to the rear drive shaft once the vehicle began to roll. Plaintiff contended that this would have either held the vehicle on the slope or, if the clutch was worn, slowed its rolling enough to provide Krueger enough time to get clear of the vehicle. GM argued that even a Borg Warner Quadra Trac transfer case at specifications would not have held the vehicle on the accident slope. I. We now address the first issue raised by GM: Did the District Court err in excluding evidence of videotaped tests conducted by the defendant's expert witness regarding the response of various types of transfer cases under conditions similar to the accident in question? In its brief, GM argues that copies of the videotapes were given to the plaintiff prior to trial, and thus do not raise a discovery compliance issue. At the deposition of defendant's expert, Richard Keefer, approximately two weeks prior to trial, GM assured Krueger's attorney, Mr. Dennis Conner, that any such videotapes would be disclosed prior to trial: Q (BY MR. CONNER) Well, what pending assignments do you have? A Pending assignments? Q Right. A I don't believe I have any specific . if refinements to the pending assignments. preliminary work we've done on evaluating various kinds of vehicles, full-time and/or part time and. . . t h e rollaway s i t u a t i o n , a r e r e q u e s t e d , why, I e x p e c t w e ' l l do it. And i f i t ' s r e q u e s t e d t h a t t h e y a r e r e p o r t e d i n some way, why, we c e r t a i n l y have t h e c a p a b i l i t y t o do t h a t . MR. CONNER: W e l l , i f h e ' s g o i n g t o d o any f u r t h e r work p r i o r t o t h e t i m e o f t r i a l , I ' d l i k e s u c h documents o r r e c o r d s t h a t a r e g e n e r a t e d which a r e d i s c o v e r a b l e t o h e c e r t a i n l y produced p r i o r t o t r i a l , a s w e l l a s having t h e opportunity t o f u r t h e r d e p o s e him--MR. HANSON: W e l l , i f you're agreeing, then--MR. CONNER: ---on t h a t s u b j e c t . MR. HANSON: ---when you h a v e y o u r w i t n e s s e s d o a l l t h e work t h e y h a v e n ' t y e t d o n e t h a t y o u ' r e g o i n g t o r e p r o d u c e them f o r d e p o s i t i o n s , f i n e . Tamny h a d n ' t done j a c k s q u a t when h e g o t u n d e r oath. And we're n o t g o i n g t o a g r e e t o any k i n d o f c o n d i t i o n s on o u r p e o p l e , r e d e p o s i n g them, t h a t i s n ' t g o i n g t o a p p l y t o you, c e r t a i n l y . We w i show you - -l l c e r t a i n l y - - whatever e x h i b i t s a r e g e n e r a t e d , - -e - i l l i n f o r m you o f a n y t h i n g and w w y o u ' r e e n t i t l e d -t o know a b o u t t h e b a s i s o r g r o u n d s f o r -- i s o p i n i o n s . h Whether I ' m g o i n g t o b r i n g M r . K e e f e r back and h a v e you d e p o s e him a g a i n , I h i g h l y doubt it, j u s t a s I h i g h l y doubt t h a t y o u ' r e going t o g i v e me a m e a n i n g f u l o p p o r t u n i t y t o l e a r n what Tamny's d o n e s i n c e t h e t i m e o f h i s d e p o s i t i o n . K e e f e r D e p o s i t o n , pp. 123-125. was d e p o s e d 12, conducted on J u l y tests of ( ~ m p h a s i s dded.) a 1988. various Mr. ~eefer P r i o r t o t h e d e p o s i t i o n he four wheel drive vehicles to d e t e r m i n e i f t h e y would r o l l on a s l o p e e q u a l t o t h e a c c i d e n t s l o p e when t h e d r i v e l i n e was removed. determined that a 1977 Jeep equipped During t h e s e t e s t s he with a Rorg Warner Q u a d r a T r a c t r a n s f e r c a s e would n o t r o l l on t h e t e s t s l o p e . Keefer Deposition, p. 139. On J u l y 2 1 and 22 h e c o n d u c t e d f u r t h e r t e s t s , r e c o r d i n g them on v i d e o t a p e . GM a l l e g e s t h a t t h i s new e v i d e n c e would d e m o n s t r a t e t h a t v i r t u a l l y any v e h i cle, i n c l u d i n g a J e e p w i t h Q u a d r a T r a c , would r e s p o n d a s t h e accident vehicle began on J u l y 2 5 , did under the circumstances. The trial 1988, t h r e e days a f t e r t h e f i n a l t e s t i n g . The existence and content of the videotapes was not disclosed to plaintiff until mid-trial, after the plaintiff had rested on August 3, 1988. In this regard, the facts of this case are similar to those in Workman v. McIntyre (1980), 190 Mont. 5, 617 P.2d 1281, where we held that admission of an undisclosed film exhibit was an abuse of discretion. The film was not made available to the plaintiff after assurances by the State that it would be. We held that: These tactics are contrary to the letter and spirit of all pretrial discovery which is to prevent surprise, to simplify the issues, and to permit counsel to prepare their case for trial on the basis of the pretrial order. Workman, 617 P.2d at 1285. It is clear from the record in this case that GM assured the plaintiff that any further exhibits generated by their expert would be disclosed prior to trial and that GM failed to do so. The District Court did not abuse its discretion in excluding the videotape evidence. GM's expert was also precluded from testifying regarding the tests conducted in the excluded videotapes, and regarding current model full-time four wheel drive designs. The trial judge ruled that: Well that's part of the experiment and that's subsequent to the close of discovery. And its also a possibility of interjecting subsequent designs. So our court is clear on that that those are not permissible. Transcript, August 8, 1988, p. 1996. We agree. In a strict liability action under a design defect theory, the question is whether the design specifications were partly or totally defective. Rix v. General Motors Corp (1986), 222 Mont. 318, 330, 723 P.2d 195, 202. Design specifications are "judged not by the condition of the product, but the state of scientific and technological knowledge available to the designer - - - - - the product at the time was on the - placed - - market." Kuiper v. Goodyear Tire & Rubber Co. (1983), 207 Mont. 37, 62, 673 P.2d 1208, 1221. (Emphasis Rix, added.) In - we set forth the following elements for instructional purposes in an alternative design products liability case: . . . (3) In determining whether an alternative design should have been used, the jury should balance so many of the following factors as it finds to - pertinent - - - - of manufacture: be at the time )( a The reasonable probability that the product as originally designed would cause serious harm to the claimant. (b) Consideration of the reasonable probability of harm from the use of the original product as compared to the reasonable probability of harm from the use of the product with the alternative design. (c) The technological feasibility of an alternative design that would have prevented claimant's harm. Rix, - 723 P.2d at 201. (Emphasis added.) Thus, the only test evidence admissible in this case would be test evidence concerning other designs available at the time the New Process 203 transfer case was placed on the market, such as the Borg Warner Quadra Trac, or conventional transfer cases. The record indicates that all the evidence excluded by the District Court was either associated with the inadmissible videotape tests, or involved subsequent designs used in the a.utomobile industry, particularly the designs used in current model full-time four wheel drive passenger vehicles. We reiterate the rule as we did in Rix: . . . a design is defective if - - - - of at the time manufacture an alternative designed product would have been safer than the original designed product and was both technologically feasible and a marketable reality. Again - - frame under the time scrutiny - - -.time - manufacture - - any is the of and not other time. Rix, - 723 P.2d at 202. (Emphasis added.) The District Court did not abuse its discretion in excluding evidence concerning the late test results and evidence of d.esigns not pertinent to the time of manufacture. 11. Regarding the second issue raised by GM, the test of admissibility for evidence of other accidents in a products liability case is "whether the circumstances surrounding the product involved in other accidents were substantially the same or similar to the accident at issue." Kuiper, 673 P.2d at 1219. The accidents need not he identical to be admissible. Runkle v. Burlington IJorthern (1980), 188 Mont. 286, 292, 613 P.2d 982, 986. Here, the other accidents all involved the New Process Model 203 transfer case and its inherent design characteristics which cause it to roll when a single wheel is jacked up or a single drive shaft removed. Although one incident involved a Chrysler vehicle, that vehicle was equipped with the same 203 transfer case used by GM. Also, the incident involving removal of the rear drive shaft demonstrates the same roll-away characteristics at issue in this case that distinguish the New Process 203 from a conventional transfer case or one equipped with a limited slip differential. The admission of evidence of other accidents in products liability litigation is entrusted to the discretion of the trial judge. Tacke v. Vermeer Mfg. Co. (1986), 220 Mont. I., 9, 713 P.2d 527, 532. We do not see any abuse of discretion in this case. As its third issue GM argues that the District Court erred in excluding evidence of Krueger's alleged habitual drug use on the issues of plaintiff's life expectancy and assumption of the risk. Relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleadinq Here, the evidence is the jury. Rule 403, M.R.Evid. speculative at best, and, if it bears any relevance at all to this case, the evidence is of such a highly prejudicial nature in comparison to its probative value that its admission could constitute error. Under Rule 403, the determination of admissibility is within the discretion of the trial judge and will not be disturbed unless there is manifest abuse of discretion. Zeke's Distributinq Co. v. Brown-Forman Corp. (Mont. 1989) , 779 P.2d 908, 911, 46 St.Rep. 1678, 1681; Dahlin v. Holmquist (1988), 766 P.2d 239, 241, 45 St.Rep. 2127, 2129-2130. The exclusion of the drug evidence in this case was a sound exercise of discretion hy the trial judge. IV. Pertaining to issue IV, at trial, the District Court gave the following instruction, i11 addition to the pattern instruction (Instruction No. 23) , on the affirmative d-efense of assumption of the risk: The Defendant has the burden of proving that Andy Krueger assumed the risk of his injuries. To establish this defense, General Motors must prove: (1) That Andy Krueger actually knew before he was injured that the vehicle would roll if he dlscon1 nected the front driveline; (2) That knowing this, Krueger voluntarily exposed himself to the danger, and. (3) That Krueger unreasonably exposed himself to that danger. If the Defendant fails to prove all three of the above, then Andy Krueger did not assume the risk of his injuries. Instruction No. 20. GM argues that the instruction erroneously requires that Krueger knew the truck would roll on him and render him a quadriplegic before he attempted to disconnect the front driveline, the absurd equivalent of requiring that he have a death wish. With regard to the affirmative defense of assumption of the risk in products liability, Montana has adopted the position of the Restatement of Torts 2d, 9 402A, Comment (n): Contributory negligence of the plaintiff is not a defense when such negligence consists merely in a failure to discover the defect in the product, or to guard against the possibility of its existence. On the other hand the form of contributory negligence which consists in voluntarily and unreasonably proceeding to encounter a known danger, and commonly passes under the name of assumption of risk, is a defense under this Section as in other cases of strict liability. If the user or consumer discovers the defect and is aware of the danger, and nevertheless proceeds unreasonably to make use of the product and is injured hy it, he is barred from recovery. Brown v. North Am. Mfg. Co. (1977), 176 Mont. 98, 110, 576 P.2d 711, 719. Assumption of the risk is now apportioned in a manner similar to fault under a comparative negligence scheme. Zahrte v. Sturm, Ruger & Co., Inc. (19831, 203 Mont. 90, 94, 661 P.2d 17, 19. The standard applied in evaluating the defense is a subjective one rather than the objective standard of the reasonahle man test: "The s t a n d a r d t o be a p p l i e d i s a s u b j e c t i v e one, of what the particular plaintiff sees, knows, u n d e r s t a n d s and a p p r e c i a t e s . I n t h i s it d i f f e r s from t h e o b j e c t i v e s t a n d a r d which i s a p p l i e d t o I f by r e a s o n of contributory negligence. age I or lack of information, experience, i n t e l l i g e n c e , o r judgment, t h e p l a i n t i f f d o e s n o t u n d e r s t a n d t h e r i s k i n v o l v e d i n a known s i t u a t i o n , h e w i l l n o t b e t a k e n t o assume t h e r i s k , a l t h o u g h i t may be found t h a t h i s c o n d u c t i s c o n t r i b u t o r y n e g l i g e n c e b e c a u s e it d o e s n o t conform t o t h e community s t a n d a r d o f t h e r e a s o n a b l e man." . . . 5 7 6 P.2d Brown, 496D, Comment a t 719, (c) . q u o t i n g R e s t a t e m e n t of T o r t s 2d, $ I n o r d e r f o r GM t o a s s e r t t h e d e f e n s e , Krueger m u s t have had s u b j e c t i v e o r a c t u a l knowledge t h a t t h e truck would knowledge of GM roll. This does not require that he t h e s e v e r i t y o f t h e i n j u r i e s h e would admitted that Krueger would have never have suffer. attempted to complete t h e r e p a i r s i n t h e manner h e c h o s e i f h e knew t h a t the vehicle would begin to roll when h e disconnected t h e drive shaft. asserts GM a b o l i t i o n of ucts that Instruction 20 is tantamount to an t h e d e f e n s e o f assumption o f t h e r i s k i n prod- liability. W disagree. e The i n s t r u c t i o n merely re- q u i r e d t h a t t h e p l a i n t i f f have a c t u a l knowledge o f t h e danger and then specifically s t a t e d what a c t u a l knowledge d a n g e r e n t a i l s under t h e f a c t s of t h i s c a s e . of the I t was o b v i o u s t o t h e j u r y under t h e s e f a c t s t h a t Krueger l a c k e d such knowlI n o t h e r c a s e s it may be e q u a l l y o b v i o u s t h a t a p l a i n - edge. t i f f h a s s u b j e c t i v e knowledge of t h e a c t u a l danger posed by a defect. t o which It I n such c a s e s , a j u r y c o u l d t h e n e v a l u a t e t h e e x t e n t that is plaintiff reversible important p a r t of more, a assumed error to the risk refuse to of his injuries. instruct a p a r t y ' s theory of t h e case. on an Further- p a r t y h a s a r i g h t t o have j u r y i n s t r u c t i o n s which are adaptable to his theory of the case. Tacke, 713 P. 2d at 534. Although we believe that Montana Pattern Instruction 7.05, taken directly from Zahrte, would have been a sufficient, comprehendable and accurate statement of the law in this case, we find no error on the part of the trial judge in giving Instruction No. 20 as a complementary instruction under the facts of this case. v. We now turn to the issue of sufficiency of the evidence, (Issue V) , to support the District Court's denial of GM's motions for directed verdict and new trial. When reviewing a jury verdict, this Court's function is to determine if there is substantial credible evidence in the record supporting the jury ' s verdict. Gunning v. General Motors Corp. (Mont. 1989), 779 P.2d 64, 66, 46 St.Rep. 1546, 1548, Weinberg v. Farmers State Bank of Worden (1988), 752 P.2d 719, 721-722, 45 St.Rep. 391, 392. Where there is substantial evidence to support the jury's verdict the District Court's refusal to grant a new trial will not be disturbed. Brothers v. Town of Virginia City (1976), 171 Mont. 352, 358, 558 P.2d 464, 467. When reviewing a denial of a motion for directed verdict, we concede as true all of plaintiff's evidence and give the plaintiff the benefit of all legitimate inferences. If the record at that point should contain substantial evidence sustaining the jury finding then the trial court's action in denying the motion for directed verdict and submitting the cause to the jury, and the jury verdict itself, must be sustained. Brothers, 558 P.2d at 467. In the case at bar there is substantial credible evidence supporting the jury's verdict and the District Court's denial of GM's motions for directed verdict and new trial. This evidence supports the finding that GM's failure to warn concerning the inherent design characteristics of the New Process Model 203 transfer case---characteristics causing vehicles equipped with it to roll under circumstances that vehicles equipped with conventional transfer cases would not---was the proximate cause of Krueger's injuries. Krueger's testimony and the testimony of the other accident victims tended to prove the same thing: the accident victims all believed that a vehicle equipped with the New Process Model 203 transfer case would behave like a conventional four wheel drive when a driveline was removed or a wheel jacked up; they all testified that had they known otherwise they would never have attempted the repairs in the manner they did. Furthermore, evidence was presented regarding the Borg Warner Quadra Trac transfer case that enabled the jury to balance the transfer case design chosen by GM against the feasibility and marketability of alternative designs. A manufacturer may be required to provide a warning in relation to its product if it is to avoid a determination that the product is unreasonably dangerous. Restatement of Torts 2d $ 402A, Comment (j) at 353 (1965). The product is automatically defective if it is unreasonably dangerous, and a warning is required but not given. Rost v. C. F. & I. Steel Corp. (1980), 189 Mont. 485, 488, 616 P.2d 383, 385. It is the manufacturer's duty to warn inadequately informed users about the risk of danger involved with the use of a product. Streich v. Hilton-Davis (1984), 214 Mont. 44, 54, 692 P.2d 440, 445. The only alleged warning given by GM is contained in a sticker that was located on the driver's sunvisor in the accident vehicle and all vehicles equipped with the New Process 203 transfer case. Plaintiff's Exhibit 199. This sticker merely consists of operating instructions for fulltime four wheel drive in the unlocked and locked positions of the transfer case, it does not warn of any of the dangers or differences from conventional transfer cases when repairs are attempted with the transfer case and interaxial differential unlocked. GM contends that because of Krueger's training in motor vehicle repair and the precautions associated with it, (such as using the parking brake, wheel chocks, and generally avoiding repairs on a slope), it is clear that any warning given "would have fallen on deaf ears." Rost, 616 P.2d at 386-387. In this regard, GM argues that the jury was entitled to hear evidence regarding plaintiff's propensity toward carelessness in the face of information available to him, including evidence of plaintiff's alleged use of dangerous drugs. We have already discussed the admissibility of the alleged drug evidence and do not believe the subject merits further discussion. Furthermore, the "deaf ears" situation in Rost is distinguishable from the case at bar. In Rost, a warning by the manufacturer of elevator cables was excused because the owner of the premises where the plaintiff was injured had a duty to maintain and inspect the elevator and would have failed to do so regardless of a warning of the obvious fact that worn elevator cables pose a serious dan-ger. In fact, the store owner in Rost had been involved in a prior accident in the same elevator when the cables broke. Here, there is no superseding cause excusing GM's failure to warn. Thus, the jury was entitled to find that GM's failure to warn was the proximate cause of Krueger's injuries. VI. We now come to issue VI concerning the admission of hearsay statements and arguments based on such statements. GM obiects to the admission of the hearsay testimony of an alleged GM master technician as given by Krueger's expert Simon Tamny. Mr. Tamny testified regarding a conversation that he had with the technician about a similar accident the technician had involving a 203 transfer case. An expert may base an opinion on facts or data perceived by or made known to him at or before the hearing. If of a type reasonably relied upon by experts in a particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible into evidence. Rule 703, M.R.Evid. - - Azure v. City of Billings (1979), 1 8 2 See e.g. Mont. 234, 255, 596 P.2d 460, 472, State v. Deshner (19711, 158 Mont. 188, 193-194, 489 P.2d 1290, 1293-1294. At trial, plaintiff qualified Mr. Tamny as an expert in transfer case design. Field investigations of user experience is an appropriate method for such an expert to form opinions as to whether a particular transfer case design is an effective design or is dangerous. Mr Tamny synthesized the technician's accident with other incidents involving the New Process 203 in arriving at his opinion that the transfer case See was defective and a warning should have been provided. Azure, 596 P.2d at 472. The District Court did not abuse its discretion in allowing plaintiff's expert to testify concerning one of the bases upon which he formed his opinion. GM's expert Paul Johnson testified that the torque specifications of the limited slip differential in the alternative design transfer case advocated by Krueger were not sufficient to hold the vehicle in place on the accident slope. During cross examination of the witness, Krueger's counsel referred to a hypothetical phone call where a Borg Warner employee had confirmed that the specifications were indeed the ones given in the testimony of Krueger's expert, and thus would have immobilized the accident vehicle or at least sufficiently slowed its rolling to allow the plaintiff to get clear of the vehicle. Krueger's counsel challenged GM's expert to call Borg Warner during a recess and confirm the torque specifications of the alternative transfer case design. The District Court sustained GM's initial objection to this questioning, then allowed Krueger's counsel to inquire after the recess whether Mr. Johnson had made the phone call. At closing argument, Krueger's counsel commented on Mr. Johnson's failure to accept counsel's challenge to call Rorg Warner regarding the specifications. The situation here is similar to that in Gunnels v. Hoyt (Mont. 1981), 633 P.2d 1187, 38 St.Rep. 1492, where we held that the plaintiff was not prejudiced by several instances of alleged misconduct by defense counsel, the most serious being that defense counsel made improper comments upon and references to excluded evidence, which indicated to the jury that the plaintiff was concealing evidence. Improper argument requires a reversal of a verdict only when prejudice has resulted which prevents a fair trial. Gunnels, 633 P.2d at 1194; Nelson v. Hartman (1982), 199 Mont. 295, 301, 648 P.2d 1176, 1179. Any prejudice suffered by the defendant here was minimal, and certainlv did not rise to such level as to deprive GM of a fair trial. VII. Finally, GM contends that the District Court erred in overruling GM's objections to Krueger's closing argument requesting the jury to "send a message to GM" when punitive damages were not an issue. We decline in this case to determine whether the "send a message" argument is proper or prejudicial in products liability litigation where punitive damages are not an issue. As we stated earlier, improper argument requires reversal of a verdict only when prejudice has resulted that prevents a fair trial. ----Gunnels, - 633 P . 2 d at 11.94; Nelson, supra, supra, - 648 P.2d at 1179. Considering the severity and permanent nature of plaintiff's injuries, and the daily attendant care he will require for the remainder of his life, we see the amount of the the jury's verdict as compensation for the plaintiff's injuries and not merely a reflection of alleged inflammatory remarks made during the plaintiff's closing arguments. We conclude that there was no abuse of discretion by the District Court in denying General Motor's motions for directed verdict and new trial. AFFIRMED. We Concur: A
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