Duffy v. Shindaiwa, Inc.

Filed 6/19/07 Duffy v. Shindaiwa, Inc. CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

Plaintiff James M. Duffy appeals from a judgment entered in favor of defendant Shindaiwa, Inc. (Shindaiwa) on his complaint for negligence and strict product liability. He contends the trial court erred by limiting the testimony of his expert witnesses and by failing to include separate interrogatories on the verdict form addressing his claim for negligent failure to warn. We affirm.

Factual and Procedural History

On November 8, 2000, Duffy was injured during the course of his employment while operating a grass trimmer that was manufactured by Shindaiwa. The T-270 Grass Trimmer (T-270) that he was using is a professional grade gasoline powered trimmer that can be fitted with either a monofilament line for cutting grass or a metal blade for clearing brush.

Duffy filed a complaint against Shindaiwa and others alleging causes of action for strict product liability and negligence.[1] The complaint alleges that the T-270 was defective, unsafe and dangerous. In June 2003, Shindaiwa served Duffy with interrogatories, including a special interrogatory that asked Duffy to identify each malfunction or defect in the product that caused the incident. In August 2003, Duffy answered that the T-270 lacked proper safety design and motion operation. On July 29, 2005, Duffy disclosed his expert witnesses. His declaration attached to the disclosure states that David A. Thompson is a consulting human factors engineer. He will provide testimony including but not limited to issues relating to standard of care regarding the safety of the machine in question, the design, adequacy of the notice or warning, alternative design and safety features, defects in design, cost of alternative design and related issues . . . . The declaration states further that Brad P. Avrit is a civil engineer and safety consultant. He will provide testimony including but not limited to issues relating to standard of care regarding the safety of the machine in question, the design, adequacy of the notice or warning, alternative design and safety features, defects in design, cost of alternative design and related issues . . . .

The matter was set for trial on September 19, 2005. On September 14, Shindaiwa filed an in limine motion to preclude the testimony of Duffys two experts on the ground that they had not been made available for deposition. Shindaiwas moving papers explained that immediately after the experts were disclosed, Shindaiwa noticed their depositions for August 22, 2005. Shindaiwas attorney wrote Duffys attorney on four occasions between August 1 and August 12 attempting to confirm or reschedule the depositions. On August 17, Duffys attorney informed Shindaiwa that he would be in trial on August 22 and thus unavailable for the depositions. No alternative dates were provided. On August 25, Shindaiwa filed an application for an order shortening time for a motion to compel the production of expert witnesses. Duffys attorney appeared at the hearing on the ex parte application and was instructed by the court to further meet and confer. The depositions of the two experts were taken on September 16, the Friday before trial and after Shindaiwa had already filed its in limine motion. When the trial court considered the motion before beginning trial the following Monday, it agreed that Duffy had unreasonably delayed the depositions but since they had already been taken, ruled that it would allow the testimony, but nothing new, nothing that didnt come up in their deposition on Friday. Absolutely nothing. During the course of trial, Shindaiwa also sought to limit Avrits testimony on the ground that he was not qualified to offer an expert opinion regarding the design of the T-270. The trial court ruled that it would evaluate Avrits qualifications to testify on a question-by-question basis.

As the evidence would eventually show, Duffy was injured while using the T-270 as a brush cutter, but without having changed the loop handle used for grass trimming to the handlebar handle that was supposed to be used for brush cutting, and without wearing the safety harness that is attached to the T-270. In his opening statement to the jury, Duffys attorney outlined his theory as to why the T-270 was defectively designed. He explained that the T-270 as a grass trimmer . . . would probably not have [been] a problem, but that the problem arose because Shindaiwa marketed the T-270 as a convertible brush cutter. If you put a blade on it, then they want you to change it. They want you to put a handlebar on it. . . . [T]hey require that you have a strap. [] . . . [] [T]he key is that you have this bicycle handle on it. And also . . . as a brush cutter they require that you have the strap. [] . . . [] So you have to go back, do various things and . . . as you can kind of guess, most people are not going to, when youre out in the field, take this off, go back over there, put a handle on it . . . and come back over. Its just not going to happen. Thats not reasonable. Thats not what reasonable people do. Shindaiwa knows this. [] . . . [] What the facts are going to show is that . . . when people put a blade on it, they do not put a handle on that. [Shindaiwa is] aware of that. [] And the facts are going to show that by . . . encouraging people to use this instrument with a blade and require that they change the handle, which they dont, makes it a dangerous item. [] . . . [] . . . [T]he facts are going to show that this instrument is dangerous because its foreseeable that youre going to use it as a brush cutter with a blade and that youre not going to change the handle. [] . . . [] . . . [I]f you know that people are going to use the brush cutter in a certain manner, . . . then the facts will show that you have an obligation to . . . design this type of feature out of the design . . . .

Duffy testified that he was injured while operating the T-270. He testified that the machine had an adjustable shoulder strap attached to it and a loop handle. When asked about the strap, he stated that he did not always wear it when using the machine as a grass trimmer but that if [he] was around like a bunch of other junk, then Id put the [strap] on because . . .stuff fly when you use it, a lot of stuff flying and kicking back. On the day of the injury, Duffys supervisor took him to an area to cut tall, thick grass like bamboo sticks on a steep hillside. His supervisor changed the blade on the grass trimmer and told Duffy that this is a different tool so be careful and try not to hit no rocks while youre using it. The loop handle on the trimmer was not changed to a handlebar handle. Duffy testified that when he began using the brush cutter [t]he strap was . . . on my shoulder, it was on the machine. But I know it wasnt hooked up the way its supposed to do. . . . I unplugged [the strap] because it was bothering my shoulder. He disconnected the strap because the machine was heavy [a]nd it was already irritating. After he changed blades . . . , it was still right there to be hooked up. But I didnt get pain enough to hook it back up. I just started using the tool. As he was cutting, the tall grass started falling on him and he slipped. As he tried to avoid falling, he released the trigger on the machine and his right hand came in contact with the blade, severing two fingers.

Brad Avrit testified that according to the T-270 instruction manual, when the grass trimmer is converted to a brush cutter, a different handlebar, a safety harness and a blade guard must be attached. [2] He also testified that at the time of the accident, the safety standard issued by the American National Standards Institute (ANSI) required that a brush cutter be equipped with either a barrier bar or a harness. A harness is defined as something with an adjustable strap or straps by which the unit is suspended from the operator . . . . On cross-examination, Avrit acknowledged that when configured as a brush cutter in accordance with the instruction manual, the T-270 satisfies the ANSI safety standard. A representative of Duffys employer testified that at the time of the accident, it was not its practice to change the handlebars when the brush cutting blade was attached.

David Thompson testified that the labels on the T-270 did not meet the ANSI standard for warning labels because they dont even say warning on them or caution or danger or alert the user in any way that they represent a hazard related to injury. He testified that the instruction manual advised the user, if the unit is used as a brush cutter . . . beware of blade thrust. A jammed blade can cause the unit to jerk suddenly and may cause the operator to lose control of the unit. In his opinion this was not a warning because [a] warning would be . . . something that described the level of severity of the hazard, a graphic description of what could go wrong . . . [a]nd then a brief description of how to avoid it.

John Foster, Shindaiwas global product manager, testified that the T-270 has an excellent safety history and that the company had received no complaints about the equipment prior to Duffys accident. Foster acknowledged that in 2005 Shindaiwa redesigned the T-270 to include an additional barrier bar that eliminated the need to change the handlebars when attaching the brush cutting blade. Shindaiwas experts testified that there was no defect associated with the T-270 as originally designed and that had Duffy been wearing the shoulder harness, [t]he probability is he would not have gotten his hand in the cutting device.

In closing, Duffy repeated his contentions that the design of the T-270 was defective and that Shindaiwa did not adequately warn of the risk of injury involved in using the equipment as a brush cutter. He argued that Shindaiwas design was unreasonable because it was foreseeable that users would not change the handlebars when attaching the brush cutting blade. He also asserted that Shindaiwa negligently failed to warn of the risk of injury because even though the defendant is aware that people use the grass trimmer with the blade without reconfiguring, they dont have any warnings about the risks that are involved in using this configuration with the blade.

The jury found in favor of Shindaiwa on all theories. In answer to special interrogatories the jury found that the T-270 did not fail to perform as safely as an ordinary consumer would have expected and that the benefits of the T-270 Trimmers design outweigh[ed] the risks of the design. With respect to Duffys failure to warn theory, the jury found that although the T-270 had known potential risks, those risks did not present a substantial danger to users of the T-270 Trimmer. Finally, the jury found that Shindaiwa was not negligent. Duffys motion for a new trial was denied and he filed a timely notice of appeal.

Discussion

1. Thompsons expert testimony was properly limited as a discovery sanction.

Duffy contends that the trial court erred in limiting Thompsons testimony to matters to which he testified at his deposition. He asserts that but for the courts restriction Thompson would have testified, contrary to his prior deposition testimony, that the grass trimmer would have been safer with a barrier bar and that a barrier bar would have prevented the accident.[3] Even if the plaintiff had not been subject to sanctions for unreasonably delaying the depositions, the court would have been justified in precluding the expert from testifying to a new theory not disclosed during the course of expert discovery. (Bonds v. Roy (1999) 20 Cal.4th 140, 146-147; Jones v. Moore (2000) 80 Cal.App.4th 557, 565-566.)But in view of the discovery abuse found by the trial court, the restriction was also justified as a sanction under Code of Civil Procedure sections 2034.300, 2023.010, and 2023.030.[4] We review the trial courts ruling for an abuse of discretion. (Stanchfield v. Hamer Toyota, Inc. (1995) 37 Cal.App.4th 1495, 1504.)

Section 2023.030, subdivision (c) authorizes the court to impose an evidence sanction by an order prohibiting any party engaging in the misuse of the discovery process from introducing designated matters in evidence. Under section 2023.010 [m]isuses of the discovery process include, but are not limited to, the following: . . . [] . . . [] (d) Failing to respond or to submit to an authorized method of discovery. In addition, section 2034.300 provides in relevant part, on objection of any party who has made a complete and timely compliance with Section 2034.260, the trial court shall exclude from evidence the expert opinion of any witness that is offered by any party who has unreasonably failed to do any of the following: [] . . . [] (d) Make that expert available for a deposition . . . .

The trial court determined that Duffy delayed unreasonably in making his experts available for deposition. In his opening brief, Duffy failed to explain why he considered the courts ruling to be an abuse of discretion. In his reply brief, he provides the explanation that the delay was caused by Shindaiwas failure to disclose the 2005 design change to the T-270. According to Duffy, Thompson could not be deposed until after he had reviewed Fosters deposition testimony, which was not completed until September 7, and it was only on September 7 that Foster acknowledged for the first time that the design of the T-270 had been modified earlier that year.

The trial court rejected this excuse. The court explained, The point of this whole thing is that you think your case is threatened then by the subsequent modification. But, the basic heart of your experts testimony goes to the nature of the . . . product prior to the change. [] . . . [] And therefore, this late discovered, you contend, modification evidence is not really critical. Its simply additive. [T]he problem is your expert contended, and does contend, that as the product was configured at the time Mr. Duffy used it, it was unsafe. [] . . . [] . . . And, that affords no justification whatsoever for delaying the experts deposition until last Friday, the 16th of September.

We agree with the trial court. Thompsons opinion regarding the safety of the grass trimmer at the time of the accident was not dependent on any subsequent design modification. At his deposition, Thompson offered his opinion that the accident could have been prevented by the use of the shoulder strap and that a barrier bar would not have prevented the injury. The fact that Shindaiwa later modified the design to add a barrier bar is no justification for failing to timely present his initial assessment to Shindaiwa through a deposition. Moreover, by the time that his deposition was taken, Duffy had been aware of the subsequent modification for ten days.

Duffys reliance on Kelly v. New West Federal Savings (1996) 49 Cal.App.4th 659, 672, is misplaced. In that case, the court held that [i]t is a misuse of a motion in limine to attempt to compel a witness or a party to conform his or her trial testimony to a preconceived factual scenario based on testimony given during pretrial discovery. (Ibid. italics omitted.) There the plaintiff had originally testified at deposition that an accident had occurred on one particular elevator but well before trial advised the defendant that [o]n further thought and a review of the photographs the accident might have occurred on the adjacent elevator. (Id. at pp. 665-666.) The court held that it was error to have precluded the plaintiff from testifying that she was injured in the latter elevator and from presenting any evidence concerning the functioning of that elevator, which rulings led to the entry of a nonsuit. The court acknowledged, however, that a court can limit trial testimony that conflicts with prior deposition testimony as a sanction for abuse of the discovery process. (Id. at pp. 672-673.) In this instance, the trial court limited Thompsons testimony to what he had already testified as a sanction for unreasonable delay in producing him for deposition. The court did not abuse its discretion in doing so.

2. Exclusion of Avrits testimony regarding the safety of the T-270 was harmless error.

Duffy contends that the court improperly restricted the testimony of his second expert witness, Brad Avrit, after concluding that Avrit lacked sufficient experience to testify regarding the safety of the design and whether the accident would have occurred with additional safety devices. Unfortunately, it is near impossible to determine precisely which rulings Duffy considers to have been erroneous. His appellate briefing verges on unintelligibility. Not all of the few record citations he provides are accurate. Many of the questions to which objections were sustained were garbled or objectionable on grounds not discussed. And the difficulty in comprehending his contentions is aggravated by what appear to be numerous errors in the reporters transcript, none of which have been corrected or clarified by counsel.

Shindaiwa asserted throughout the trial court proceedings that although Avrit had been a civil engineer and safety engineer for about 14 years, designed safety guards for other machinery, and investigated more than 3000 accidents,[5] Avrit lacked the qualifications necessary to express opinions concerning the safety of the T-270. Shindaiwa relied on Avrits acknowledgment that he had not seen a T-270 before the start of trial, had not inspected or operated the Shindaiwa or any other brand of gasoline powered grass trimmer or brush cutter, and did not know how long the T-270 was or how much it weighed. Avrit also acknowledged that although he had done research on many products, he had not done any research on any comparable products in the 1999/2000 time frame. The court expressed some doubt that Avrit was qualified as an expert in safety engineering in general, but refused to issue a blanket ruling and said it would rule on objections to questions asked by counsel question by question.

Based on Duffys record citations, he appears to challenge rulings sustaining objections to four specific questions. First, immediately after Avrit testified to his qualifications and to the subjects he had been asked to investigate, and prior to discussing any specifics about the T-270 or the applicable safety standards, Avrit was asked, Is the product safe for design?[6] Shindaiwa objected, apparently on the ground that there was a lack of foundation, and the court sustained the objection. At that point, neither Avrit nor any other witness had testified to the design of the T-270 or to the applicable safety standards. Following the courts ruling, Avrit was questioned extensively on those subjects. The court did not abuse its discretion in requiring these basic facts to be developed before permitting the expert to opine on the safety of the design. (Evid. Code,  802 [The court in its discretion may require that a witness before testifying in the form of an opinion be first examined concerning the matter upon which his opinion is based].)

Second, Duffy argues that the court erred in refusing to permit Avrit to testify whether the product was more dangerous when operated with a brush cutting blade than with a trimming line. The court sustained an objection to a question calling for this opinionnot on the basis of Avrits qualifications, but on the ground that expert testimony was not necessary to establish the obvious fact that the metal blade presented a greater danger and that such an opinion would not assist the trier of fact. [T]he decisive consideration in determining the admissibility of expert opinion evidence is whether the subject of inquiry is one of such common knowledge that men of ordinary education could reach a conclusion as intelligently as the witness or whether, on the other hand, the matter is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact. (People v. Cole (1956) 47 Cal.2d 99, 103.) The trial court did not abuse its discretion in concluding that the jury could properly determine based on its common experience whether the T-270 was more dangerous when used with a metal blade.

Finally, after describing his understanding of how the accident occurred, Avrit was asked Do you have an opinion as to whether or not the accident would have happened had Mr. Duffy had a barrier bar?[7] Avrit was also asked, Given the increased danger associated with using a blade than a trimming line, would it be reasonable to configure a grass trimmer with a barrier bar?[8] It appears that the court sustained Shindaiwas objections to these questions based on Avrits asserted lack of familiarity with and experience in operating the T-270. An experts knowledge, however, may be derived from reading alone in some fields (education), from practice alone in other fields (experience), or as is more commonly the case from both. (1 McCormick On Evid. (6th ed. 2006) 13, fns. omitted.) While the trial court is vested with broad discretion in ruling on the admissibility of evidence (Tudor Ranches, Inc. v. State Comp. Ins. Fund (1998) 65 Cal.App.4th 1422, 1431-1432), Avrits 14 years as a safety engineer and his experience with equipment involving risk of injury to a persons hands or feet was sufficient to qualify him to testify to the safety of the design of the T-270, despite the trial courts apparent view that he was not qualified because he had little or no prior experience with such a machine. (See Jeffer, Mangels & Butler v. Glickman (1991) 234 Cal.App.3d 1432, 1442-1443 [The trial court will be deemed to have abused its discretion [by excluding expert testimony] if the witness has disclosed sufficient knowledge of the subject to entitle his opinion to go before the jury. [Citation.] [] . . . [] . . . If a witness has passed this threshold [demonstrating sufficient knowledge of the subject matter that his opinions will be helpful to the jury in the search for the truth], the question of the degree of the witnesss knowledge goes to the weight of the testimony rather than to its admissibility.].) Nonetheless, the improper exclusion of this evidence is not reversible unless it is reasonably probable a result more favorable to the appellant would have been reached absent the error.   (Tudor Ranches, Inc. v. State Comp. Ins. Fund, supra, 65 Cal.App.4th at pp. 1431-1432.)

Duffy did not make an offer of proof as to what Avrit would have testified had the court not sustained Shindaiwas objections. Moreover, Avrits deposition testimony is not included in the record, so there is no basis to determine the substance of the excluded testimony. Normally the exclusion of evidence will not be considered on appeal unless the substance, purpose and relevance of the excluded evidence was made known to the trial court. (Pacific Gas & Electric Co. v. Zuckerman (1987) 189 Cal.App.3d 1113, 1142.) This rule is necessary because, among other things, the reviewing court must know the substance of the excluded evidence in order to assess prejudice. (People v. Anderson (2001) 25 Cal.4th 543, 580.) Because the record contains no such information, there is no basis to determine that the exclusion of Avrits testimony resulted in any prejudice.

Moreover, even the most favorable testimony in response to the questions to which objections were sustained would not likely have resulted in a more favorable outcome for Duffy. Testimony by Avrit that the addition of a barrier bar to the T-270 would have prevented Duffys injury would have had no bearing on the jurys finding that the T-270 (without the barrier bar) did not fail to perform as safely as an ordinary consumer would have expected. Nor would such testimony have affected the jurys adverse findings concerning negligence or the failure to warn. Such testimony would have been relevant only to Duffys strict product liability claim under the risk benefit theory of a design defect.[9] Extending the assumption that Avrit would have testified to all facts necessary to establish that the benefits of the original T-270 design did not outweigh the risk of failing to include a barrier bar in the design, it is still not likely that Duffy would have prevailed. As the special interrogatories to the jury were framed, the jury was asked to decide first whether the benefits outweighed the risk of the design. The jury answered this question in the affirmative, but assuming that with Avrits testimony it would have answered in the negative, the next question on the verdict form, which the jury did not reach, was whether the T-270 was used or misused in a way that was reasonably forseeable to Shindaiwa. There is no evidence that would have supported an affirmative finding.

California law  requires a manufacturer to foresee some degree of misuse and abuse of his product, either by the user or by third parties, and to take reasonable precautions to minimize the harm that may result from misuse and abuse.  (Huynh v. Ingersoll-Rand (1993) 16 Cal.App.4th 825, 833.) Nonetheless, Duffy did not present any evidence to show that the degree of misuse in this case was foreseeable. Avrit testified that the ANSI standard requires a safety harness or a barrier bar and that the T-270, when configured as a brush cutter according to the instruction manual, meets industry safety standards. Indeed, if converted according to the instruction manual, the T-270 had both a safety harness and, with the handlebar handle, a barrier bar. While Duffy emphasizes the foreseeablity that a user would not change the handle when converting the T-270 to a brush cutter, he offered no evidence, and in fact did not even argue, that it was foreseeable that a user would fail to change the handle and also fail to use the attached safety harness. According to Shindaiwas expert, the safety harness that Duffy acknowledges he removed likely would have prevented the accident, and Duffy did not offer or attempt to offer any evidence to the contrary. Avrit was not asked whether the safety harness that was attached to the equipment but not used by Duffy would have prevented the accident. There was no evidence, or proffered evidence, that users commonly use the T-270 as a brush cutter without changing the handle and without wearing the safety harness. Thus, even if Avrits excluded testimony would have changed the jurys evaluation of the risk-benefit analysis, it is unlikely that Duffy would have prevailed because he failed to prove another essential element of the cause of action. Hence, Duffy suffered no prejudice as a result of the exclusion of Avrits testimony.

3. The special verdict form was proper.

The jury was instructed that Duffys fourth theory of liability was negligence. It was instructed that to establish this claim Duffy was required to prove that Shindaiwa was negligent in supplying or inspecting the Trimmer and in a separate instruction was also told that Mr. Duffy claims that Shindaiwa was negligent by not using reasonable care to warn or instruct about the trimmers dangerous condition or about facts that make the trimmer likely to be dangerous. The jury was properly instructed with the necessary elements for a cause of action for negligent failure to warn. Duffy did not object to these instructions. The special verdict form includes a single set of interrogatories for Duffys claim for negligence and asks only Was Shindaiwa negligent? [10] Duffy contends that the trial court erred in rejecting his proposed special verdict form that included separate special interrogatories for negligence and for negligent failure to warn.[11]

Shindaiwa argues that Duffy was entitled to only one verdict form for negligence because there is only one primary right involved, i.e., the right to be free of injury due to anothers breach of duty, or negligence. Arguably, however, negligent failure to warn involves a separate primary right and duty, and hence constitutes a separate cause of action. (Valentine v. Baxter Healthcare Corp. (1999) 68 Cal.App.4th 1467, 1487, fn. 15.) However, the jury was properly instructed regarding both theories of liability. Moreover, it was also instructed on the theory that the product was defective as the result of the failure to warn, and this theory was addressed separately on the verdict form. The jury rejected the product defect theory with the finding that the potential risks of the product did not present a substantial danger to users of the T-270, and it found that Shindaiwa was not negligent. Had it agreed with Duffy on any theory of negligence, it could not have so found.[12] There is no possibility that Duffy was prejudiced by combining negligence and negligent failure to warn in a single interrogatory.

Disposition

The judgment is affirmed. Shindaiwa shall recover its costs on appeal.

_________________________

Pollak, J.

We concur:

_________________________

Parrilli, Acting P. J.

_________________________

Siggins, J.

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[1] The complaint also included causes of action for negligence and premises liability against the City and County of San Francisco and the Treasure Island Development Authority. In a previous appeal, this court affirmed the summary judgment granted in favor of those defendants. (Jan. 30, 2006, A108968 [nonpub. opn].)

[2] Avrit testified that the T-270 grass trimmer has, at the time of the accident . . . what is called a loop handle on the machine. . . . But the machine can also be converted to a brushcutter by changing the blade of the machine. Avrit explained that when you convert the grass trimmer to a brushcutter, the instruction manual requires you to remove the handle on the machine, the loop handle. . . . [Y]ou have to purchase a conversion kit . . . that is a set of handles that look like the handlebars on a bicycle. You have to re-mount that bicycle handle on the shaft of the machine. You have to remove the location of the throttle from the shaft handle onto the handlebars. You have to change the guard thats down at the base of the machine. And you have to install a strap that is used to help distribute the weight of the machine. Avrit testified that the handlebar handle serves as a barrier bar, preventing the users hands from touching the blade when the T-270 is used as a brush cutter.

[3] In his deposition testimony, Thompson testified that the use of the shoulder strap would have, and that a barrier bar would not have, prevented the accident. According to Duffys post-trial declaration, After further consideration after the deposition, the expert was going to offer different testimony. [] . . . The expert was going to testify that if plaintiff had a shoulder harness on the accident would have still occurred. [] Moreover, he would have testified that the accident would not have occurred had the brush cutter had a protective bar.

[4] All statutory references are to the Code of Civil Procedure unless otherwise noted.

[5] Avrit testified he has been a civil engineer and safety engineer in California for about 14 years. About half of his business is managing construction projects. We get to see all kinds of tools and equipment that are used at the job sites. And parts of our business is doing safety engineering where we design guards for products and machinery that is used. The other half of his work is forensics engineering. He has investigated more than 3000 accidents over the past 14 years. He has studied and analyzed multiple cases involving . . . equipment and machines, such as lawn mowers, circular saws, power press equipment, other manufacturing equipment. He explained, Whenever there is an opportunity for somebodys hands or feet to be cutoff or severed or injured by engaging or getting the persons extremities within the point of operation of the machine, Ive evaluated dozens of cases that involve different products where you have to evaluate what is the safety of the guarding system and what can be done to provide adequate protection for the worker under the conditions that the particular machine is being used. He also testified, Ive investigated other accidents involving brush cutters, and Ive investigated other accidents, as well as reviewed the standards in the industry and manuals of Shindaiwa and other manufacturers.

[6] We assume that this is a reporting error and that the question was whether the product was safely designed, or something to that effect.

[7] The trial court initially stated that it did not understand this question and Duffys attorney rephrased it by asking, If the grass trimmer had a barrier bar as opposed to a loop handle, do you have an understanding this happened? The latter question may not have been correctly transcribed. We understand the purport of the questions to be whether the accident would have occurred if the T-270 had been equipped with a barrier bar.

[8] Duffy also cites to a question whether Avrit had an opinion regarding the ANSI standard allowing a convertible grass trimmer to be marketed without including the devices required, or for converting the instrument to a brushcutter in the packaging? Shindaiwa objected to this question and the court sustained the objection on the ground that Avrit was not qualified to comment on whether a ANSI standard is good or bad. We doubt the question was objectionable because of Avrits lack of qualifications, but have no doubt the objection was properly sustained on other grounds.

[9] The jury was instructed that if Duffy established that Shindaiwa sold the T-270, that any changes made to the T-270 were foreseeable, that the T-270 was used or misused in a reasonably foreseeable way, and that the design of the T-270 was a substantial factor is causing harm to Duffy, it was Shindaiwas burden to establish that the benefits of the design outweigh the risks of the design. In so deciding, the instruction continued, the jury should consider the following: [] (a) The gravity of the potential harm resulting from the use of the Trimmer; [] (b) the likelihood that such harm would occur; [] (c) The feasibility of an alternative design; [] (d) The cost of an alternative design; [and] [] (e) The disadvantages of an alternative design. This instruction was based on CACI No. 1204, and correctly states the applicable legal standard. (Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 562; Barker v. Lull Engineering Co. (1978) 20 Cal.3d 413, 430-431.) Duffy does not argue otherwise.

[10] The jury was separately instructed and the special verdict form included separate interrogatories on Duffys strict liability claim for failure to warn. The jury did not reach the question regarding the adequacy of the warnings, having first concluded that the potential risks of the T-270, which were known at the time of the accident, did not present a substantial danger to users of the T-270.

[11] Duffy sought to ask the jury the following questions: Did Shindaiwa, Inc. know or should it reasonably have known that the trimmer was dangerous or likely to be dangerous when used in a reasonably foreseeable manner? Did Shindaiwa, Inc. know or should it reasonably have known that users would not realize the danger? Did Shindaiwa, Inc. fail to adequately warn of the danger of the trimmer?

[12] Duffy argued for the first time during oral argument that the failure to include separate interrogatories was misleading because the jury might have believed that in order to find negligence it was necessary to find that Shindaiwa both negligently supplied a dangerous product and negligently failed to warn of the dangers of its product. However, nothing in the two negligence instructions suggested that either theory of negligence was dependent on the other, and there was no objection to the content of the instructions. Any potential ambiguity was cured by the closing argument in which Duffys attorney explained that the failure to warn was one claim of negligence and that a similar one would be negligence in terms of Shindaiwa supplying the instrument.