Robbins v. Farmers Union Grain Terminal Association
552 F.2d 788 (8th Cir. 1977)
 

LAY, J. Farmers Union Grain Terminal Association (GTA) appeals from the award of $391,908.21 damages in favor of Wayne Robbins, Charles Robbins and James Robbins for the loss or damage to their cattle allegedly caused by a feed supplement, Rum-Liq, manufactured by GTA. The jury found the defendant liable under alternative theories of negligence, breach of implied warranty and strict liability....

FACTUAL BACKGROUND

The plaintiffs are partners in a cattle feeding operation near Watertown, South Dakota. In the fall of 1971 they purchased 3,259 calves with an average weight of 412 pounds. The calves were started on a feeding program which included Rum-Liq, a cattle feed protein supplement advertised as aiding in weight gain and being more economical than other protein sources. The main ingredient of Rum-Liq is urea, a widely used non-protein nitrogen substance which ruminant animals are able to convert into protein.

GTA's product bore a tag which stated: "WARNING--Follow directions on back of tag...." The relevant part of the tag providing the feeding instructions read:

STARTING CATTLE ON FEED: Cattle coming into feedlot have normally been subjected to considerable stress--shipping, changes in feed, water and environment. Fresh, clean water and medium quality hay should be available in the feedlot when the cattle arrive. The first ten days follow the recommended programs using GTA ROUGHAGE ROUSER MEDICATED OR GTA BEEF START MEDICATED. At the close of this period, change to a recommended GTA feedlot feeding program.

The plaintiffs started feeding each calf one-quarter pound of Rum-Liq daily. They gradually increased the dosage so that fourteen days after the calves arrived in the feed lot they were receiving one pound of Rum-Liq per day. After the fourteen-day "conditioning period," the calves were moved to outer pens where they continued to receive one pound of Rum-Liq each day. During the second week in November of 1971 some of the calves died and others were uncoordinated, bloated, urinating frequently, shaking and shivering, showing white foaming saliva, and breathing hard.

The Robbins first suspected that the calves were suffering from a respiratory disease, and they attempted treatment, but the calves did not respond. On December 8, 1971, after 77 animals had died and approximately 600 others were sick, two animals were taken to the diagnostic laboratory at South Dakota State University at Brookings. The lab found that blood of the two calves had a high level of ammonia, and they advised the plaintiffs, on the same day, that this could be the result of urea feeding. The plaintiffs immediately cleaned all the feed containing Rum-Liq out of the feed bunks, and stopped adding Rum-Liq to the feed. The sudden death losses decreased rapidly after December 9 and few animals subsequently developed the above described symptoms.

Beginning on March 7 the plaintiffs shipped their cattle for "finishing" to a commercial feed lot in Nebraska. According to plaintiffs' proof each of the seven shipments of cattle, when sold, weighed less on an average than normally expected and each shipment incurred extra feed and drug costs. An additional 59 head died at the commercial lot and 64 were sold early.

The plaintiffs sought the following damages: $2,000 for the Rum-Liq; $12,000 for extra veterinary expenses; $64,000 for the 342 dead animals (this figure took into account normal or expected deaths); $73,000 for extra feed; and $185,000 for losses on early sales and failure of the cattle to gain weight.

NEGLIGENCE

The thrust of plaintiffs' case is that GTA failed to give adequate warnings for the safe and effective use of its product. Plaintiffs claim that GTA knew or should have known that, although their instructions recommended waiting 10 days before starting calves on a full feeding program, experts recommended a longer delay.

Plaintiffs' animal nutrition experts testified that a manufacturer should warn a feeder to wait 28 to 30 days before starting calves on a high percentage urea feeding program such as Rum-Liq. Furthermore, Dr. Britzman, the Director of Animal Nutrition, Research and Management Services for GTA admitted that he knew of one authority who recommended that urea not be fed to calves within four weeks of weaning and that another authority questioned the feeding of urea to unadapted calves during early feed lot stages. From this evidence a jury could find that GTA's instructions inadequately warned of the danger of feeding urea to unadapted calves and that GTA had or through the exercise of reasonable care should have had knowledge of the dangers of urea....

SUBSEQUENT REMEDIAL WARNING

On December 31, 1971, GTA mailed the following notice to its sales personnel:

File copy distributed to all division personnel 1/12/72

SUPPLEMENTARY DIET FOR "NEWLY ARRIVED" FEEDLOT CATTLE

It is not recommended that high urea supplements (liquid or dry) be fed to cattle which have recently been placed in the feedlot. These cattle should be allowed time to overcome the stresses associated with shipment, vaccination, and adjustment to feedlot conditions. This may involve as long as 28-30 days. During this period, GTA ROUGHAGE ROUSER MEDICATED, or a similar low-urea supplement, should be fed.

Additional recommendation for handling and starting newly arrived feeder cattle are given on the attached sheets.

GTA FEEDS

Department of Animal Nutrition,

Research and Management Services.

Plaintiffs offered this letter into evidence as relevant to the strict liability count to show an unreasonably dangerous and defective product. Plaintiffs also sought to show the feasibility of issuing such a warning in 1971 under their negligence theory. GTA objected that the exhibit was inadmissible on both counts under Fed. R. Evid. 407. The trial court ruled that the letter was admissible as substantive evidence since Rule 407 did not apply to strict liability, but that it would not be admissible on the negligence count unless feasibility was "controverted" as required by Rule 407. Plaintiffs then requested GTA to admit feasibility, and when GTA refused the trial court ruled that plaintiff could show that it was feasible to give the remedial instruction prior to the plaintiffs' purchase of the feed supplement.

On appeal GTA asserts that the exhibit should have been excluded under Rule 407 on both the strict liability and negligence counts and urges that the feasibility of giving the precautionary measure was not properly controverted. In addition GTA claims that the trial court failed to give any limiting instruction as to the exhibit's admissibility, and that the plaintiffs improperly argued to the jury that the post-remedial measure was evidence of GTA's negligence.

We need not consider whether the issue of feasibility was properly controverted because we find (1) that the exhibit was admissible under strict liability and (2) that GTA failed to object to plaintiffs' argument before the jury and did not request any cautionary instruction, or object to the court's failure to give a limiting instruction.

RULE 407

The trial court in receiving the exhibit relied on Ault v. International Harvester Co., 13 Cal. 3d 113, 117 Cal. Rptr. 812, 528 P.2d 1148 (1974). In the Ault decision the Supreme Court of California observed that the exclusionary rule governing subsequent remedial measures (Cal. Evid. Code 1151) is applicable only to negligent or culpable conduct.(1)9 The court said that while the exclusionary rule "may fulfill this anti-deterrent function in the typical negligence action, the provision plays no comparable role in the products liability field."(2)1013 Cal. 3d at 120, 117 Cal. Rptr. at 815, 528 P.2d at 1151.... We have applied the Ault rationale in allowing proof of post-occurrence design modification and to a subsequent remedial instruction, and find no reason to bar its applicability to Rule 407 since Rule 407 is, by its terms, confined to cases involving negligence or other culpable conduct. The doctrine of strict liability by its very nature, does not include these elements. See Ault v. International Harvester Co., supra; and Passwaters v. General Motors Corp., 454 F.2d 1270, 1277-79 (8th Cir. 1972)

RELEVANCY

Relevancy of post-remedial measures in a defective design case have been outlined by the Seventh Circuit:

[T]he plaintiff must establish that the "product in question has ;[not] lived up to the required standard of safety." This, of course, requires proof that, inter alia: (1) the product as designed is incapable of preventing the injury complained of; (2) there existed an alternative design which would have prevented the injury; and (3) in terms of cost, practicality and technological possibility, the alternative design was feasible. Evidence of post-occurrence change which tended to satisfy plaintiff's burden on any of these issues would therefore, be relevant.

Lolie v. Ohio Brass Co., 502 F.2d 741, 744 (7th Cir. 1974).

Under the view that "foreseeable danger" is still considered an element of strict liability,(3)13 evidence of "technological possibility," as related to the feasibility of a manufacturer to provide adequate instructions with its product, implies knowledge that such instructions could have been used to make the product safe or, at least, implies that such knowledge could be obtained through "the application of reasonably developed human skill and foresight." See Restatement (Second) of Torts 402A, Comment j. In the instant case Dr. Britzman of GTA testified that it was "feasible" to give, in 1971, a warning similar to that contained in the exhibit. Although the trial court limited the proof to show that it was feasible "to have sent out the notice," implicit in this admission is that it was technologically possible to have given the instructions in 1971. It would hardly be possible to concede feasibility to send out such cautionary instructions, if the manufacturer did not have either actual or constructive knowledge of the technological information. More relevant is the fact that a remedial instruction may provide substantial evidence that with a different instruction the harm would not have resulted (causation) and that failure to give the instruction created an unreasonably dangerous product (defect).15 Lolie v. Ohio Brass Co., supra.

We conclude that the directive was relevant and properly admitted under the strict liability count. The fact that the exhibit was generally admitted and should have been limited to the strict liability count does not require reversal. As we pointed out the defendant did not offer any limiting instruction or object to the failure of the trial court to give such an instruction. The purpose for requiring specific objection to instructions or to any alleged trial error is to provide the trial court the opportunity to correct the error at the time. See, e.g., Sterling Drug, Inc. v. Cornish, 370 F.2d 82 (8th Cir. 1966). This case is exemplary of the rule since it is clear that the trial judge fully intended to give a limiting instruction concerning Exhibit 38 but it was later inadvertently omitted. Under the circumstances the defendant cannot complain. See Griggs v. Firestone Tire & Rubber Co., 513 F.2d 851 (8th Cir.), cert. denied, 423 U.S. 865 (1975).



Is the Robbins opinion internally consistent? Insofar as strict liability doctrine employs negligence concepts such as "foreseeable danger" and "unreasonably dangerous," is there a sound basis for the distinction as to proof of subsequent repairs in strict liability cases and in negligence cases? Does the policy on which Rule 407 is based apply to the same extent in strict liability cases as it does in negligence cases? Is the evidence more or less probative in such cases? Does this argue for or against the policy of excluding such evidence generally?

1. 9. It is noteworthy that the Advisory Committee's Note to Fed. R. Evid. 407 specifically indicates that Rule 407 is patterned after 1151 of the California Evidence Code. 2 J. Weinstein & M. Berger, Weinstein's Evidence, 407 (1975).

2. 10. Justice Mosk writing for the Supreme Court of California offered the following cogent explanation:

"When the context is transformed from a typical negligence setting to the modern products liability field, however, the 'public policy' assumptions justifying this evidentiary rule are no longer valid. The contemporary corporate mass producer of goods, the normal products liability defendant, manufactures tens of thousands of units of goods, it is manifestly unrealistic to suggest that such a producer will forego making improvements in its product, and risk innumerable additional lawsuits and the attendant adverse effect upon its public image, simply because evidence of adoption of such improvement may be admitted in an action founded on strict liability for recovery on an injury that preceded the improvement. In the products liability area, the exclusionary rule of section 1151 does not affect the primary conduct of the mass producer of goods, but serves merely as a shield against potential liability. In short, the purpose of section 1151 is not applicable to a strict liability case and hence its exclusionary rule should not be gratuitously extended to that field.

"This view has been advanced by others. It has been pointed out that not only is the policy of encouraging repairs and improvements of doubtful validity in an action for strict liability since it is in the economic self interest of a manufacturer to improve and repair defective products, but that the application of the rule would be contrary to the public policy of encouraging the distributor of mass-produced good to market safer products. (Note, Products Liability and Evidence of Subsequent Repairs, 1972 Duke L.J. 837, 845-852.)

"The recent case of Sutkowski v. Universal Marion Corporation (1972), 5 Ill. App. 3d 313, 281 N.E.2d 749, directly supports this conclusion. Noting that in the products liability field 'policy considerations are involved which shift the emphasis from the defendant manufacurer's conduct to the character of the product' (emphasis added) (281 N.E.2d at p. 753), the Sutkowski court held that the Illinois statutory rule excluding evidence of post-occurrence changes in negligence cases did not apply to products liability cases." Ault v. International Harvester Co., 13 Cal. 3d 113, 121-22, 117 Cal. Rptr. 812, 815-16, 528 P.2d 1148, 1151-52 (1974) (footnote omitted.)

3. 13. Although we express reservation in using negligence terms in a strict liability case (see n.15 infra), the trial court instructed as follows:

"In order to prevent the product from being unreasonably dangerous, the seller may be required to give directions or warning, on the container, as to its use. Where, however, the product contains an ingredient whose danger is not generally known, or if known is one which the user would reasonably not expect to find in the product, the manufacturer is required to give warning against it, if said manufacturer has knowledge, or by the application of reasonable, developed human skill and foresight should have knowledge, of the presence of the ingredient and the danger. Failure to warn of such a danger renders such a product defective, but you are instructed, however, that the defendant is liable only if you find that such failure to warn is a proximate cause of the loss and injury to the plaintiffs' cattle." (Emphasis added.)

 


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