Fletcher v. Ford Motor Co.

*825 Gribbs, J. The plaintiff, Ruby Fletcher, appeals from a judgment for the defendant, Ford Motor Company, in a products liability action. Fletcher worked for the Budd Company, which produced automobile parts for Ford. The dies to produce the parts were supplied by Ford and did not include protective guards to prevent a press operator’s hands from being crushed between the dies. Fletcher was using a press which required two-hand operation. Theoretically, if one hand was removed from a palm button, the press ram would stop. Fletcher reached into the die space to remove a part which had failed to properly eject (by a forced air system). While reaching in, the press inadvertently continued a stroke, crushing Fletcher’s arm between the dies. Fletcher sued Ford because of its unguarded dies, alleging negligence arid breach of warranty. The jury returned a verdict for the defendant, and the trial court denied the plaintiff’s motion for a new trial. The plaintiff now appeals, raising three issues. She argues that the court erred by excluding three recommended safety codes from evidence under MRE 707 (learned treatises), by refusing to instruct the jury on the duty of one who supplies chattels to another to use for the supplier’s business purposes, and by refusing to instruct that an industry may not set as its own standard of care conduct that is less than reasonable. I. MRE .707 The plaintiff first argues that the trial court erred by refusing to allow into evidence three documents, claiming they should not be excluded under MRE 707 because they are not learned treatises. The documents are the Accident Prevention Manual for Industrial Operations (5th ed, *826 1964), Power Press Safety Manual (1958), and Guards Illustrated (1962), all publications by the National Safety Council (NSC). A fourth publication, the American Standards Association’s (ASA) Safety Code for Power Presses (ASA B 11.1-1960, 1960 ed), was admitted into evidence. A. Safety Publications as "Learned Treatises” The trial court ruled that the three National Safety Council publications were inadmissible under MRE 707. We agree with the trial court’s initial determination that these documents are included within the scope of rule 707. Rule 707 states: "To the extent called to the attention of an expert witness upon cross-examination or relied upon by him in direct examination, statements contained in published treatises, periodicals, or pamphlets on a subject of history, medicine, or other science or art, established as a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice, are admissible for impeachment purposes only.” We first reject the plaintiffs contention that the three publications are comparable to the American Standards Association publication from an evidentiary standpoint. The ASA book was admissible as evidence of an accepted nongovernmental industry safety standard. See MCL 600.2946; MSA 27A.2946. The NSC publications, however, do not fall within the scope of the "industry standards” statute because they do not represent accepted industry-wide standards. Instead, they are — as the publications state in their introductions — non-binding recommendations and alternative safety ideas. We also find unpersuasive the plaintiff’s citation of Coger v Mackinaw Products Co, 48 Mich App 113, 124-125; 210 NW2d 124 (1973), and Thompson *827 v Essex Wire Co, 27 Mich App 516, 534-535; 183 NW2d 818 (1970). Those pre-MRE cases discussed the foundation requirements of having an expert witness available to testify and be cross-examined about a treatise; they do not discuss the scope of what is now MRE 707. The plaintiff has attempted to distinguish "learned treatises” from safety publications drafted by voluntary safety organizations. See Mc-Comish v DeSoi, 42 NJ 274; 200 A2d 116, 120-121 (1964). 1 We do not believe the evidentiary rule establishes such a distinction. The rule covers "published treatises, periodicals, or pamphlets on a subject of history, medicine, or other science or art”. 2 MRE 707. This is broad enough to include the National Safety Council publications. Cf. Mississippi Power & Light Co v Whitescarver, 68 F2d 928, 930 (CA 5, 1934). The rule is not — as the plaintiff implies — applicable only to medical texts. B. Use of Learned Treatises Under its terms, MRE 707 restricts the use of learned treatises to impeachment purposes only. This eliminates all other possible nonhearsay purposes, including to show knowledge. More than a modification of its federal rules counterpart, FRE 803(18), 3 this would make the use of learned trea *828 tises more restricted than it would be had MRE 707 never been adopted because rule 707 is not exclusive in nature; it is inclusive. It does not exclude learned treatises for only hearsay purposes; it goes beyond this and allows their use for only one form of nonhearsay purposes, the impeachment purpose. Slocum v Ford Motor Co, 111 Mich App 127, 139; 314 NW2d 546 (1981), lv den 414 Mich 886 (1982); Sponenburgh v Wayne County, 106 Mich App 628, 641-645; 308 NW2d 589 (1981); Ellison v Wayne County General Hospital, 100 Mich App 739, 746; 300 NW2d 392 (1980), lv den 411 Mich 988 (1981); Stachowiak v Subczynski, 93 Mich App 245; 287 NW2d 194 (1979), rev’d 411 Mich 459; 307 NW2d 677 (1981); Stanek v Bergeon, 89 Mich App 283, 286; 279 NW2d 296 (1979). This analytical approach was rejected, however, by the Michigan Supreme Court in Stachowiak v Subczynski, 411 Mich 459; 307 NW2d 677 (1981). In Stachowiak, a medical malpractice case, the defense used enlarged charts from medical textbooks to illustrate the defendant’s testimony that he had relied on available information in designing a course of treatment for the plaintiff patient. The defense did not seek to admit the charts for the substantive purpose of proving their accuracy; clearly, a nonhearsay purpose was intended. The trial court allowed the charts (with some modifications). The Court of Appeals reversed, holding that the charts were not used for impeachment purposes and thus were inadmissible under MRE 707. *829 The Supreme Court upheld the trial court and implicitly determined that MRE 707 posed no obstacle to admissibility of the charts. Although the Supreme Court recognized that the charts were not proposed for a hearsay purpose (and, thus, MRE 801[c] and 802 would not bar admission), the Court failed to note that MRE 707 is not phrased in hearsay/nonhearsay terms. Despite being "nonhearsay”, evidence may still be prohibited by another rule, as the Stachowiak Court recognized by addressing the probative/prejudicial balance of MRE 403. By its decision, the Court in effect has rewritten rule 707, changing the phrase "for impeachment purposes only” to "for impeachment and nonhearsay purposes”. The Stachowiak opinion appears to alter the meaning of MRE 707 quite appropriately since rule 707, as drafted, is unduly restrictive. For example, a manufacturer in a products liability action is "held to the knowledge of an expert and is presumed to know of scientific studies and articles concerning the safety of its products”. Dunn v Lederle Laboratories, 121 Mich App 73, 79-80; 328 NW2d 576 (1982). Learned treatises discussing the safety of a product should thus be admissible in the plaintiffs case in chief to raise a presumption of notice. This is a nonhearsay purpose — so MRE 802 would pose no bar to admissibility — but it is not an impeachment purpose. Rule 707 as drafted would prevent the use of relevant and important evidence of knowledge. The Supreme Court’s interpretation in Stachowiak, however, avoids this prohibitive result and promotes a reasonable use of learned treatises. Applying the Stachowiak result to our facts, the three documents would be admissible if they were introduced for a nonhearsay purpose. We have *830 examined the transcript, and it clearly reveals that the plaintiff sought to introduce the documents to show Ford’s knowledge of the need for safety guards on dies and the feasibility of such a design. These are nonhearsay purposes, and thus the court erred in disallowing them under MRE 707. C. Harmless Error Although the court’s ruling was erroneous, we conclude that the error was harmless. GCR 1963, 529.1. The plaintiff successfully used two other pieces of evidence to show knowledge and feasibility. The first was the American Standards Association’s Safety Code for Power Presses. This was admitted as substantive evidence of an industry safety standard, MCL 600.2946; MSA 27A.2946, whereas the three publications involved here showed only suggested standards. 4 The second source of evidence was the testimony of the plaintiff’s expert witness, who ably testified about the promulgation of standards, the basics and specifics of die and power press safety, and the extent of industry knowledge in 1968 when the Ford dies were produced. The National Safety Council publications were intended to support the expert’s testimony, but they would have added no more — qualitatively — than did the American Standards Association book. The plaintiff was therefore able to put substantial evidence of knowledge and feasibility before the jury; her inability to add quantitatively to this evidence was harmless. 5 _ *831 II. Supplier of Chattels Instruction The plaintiff next argues that the trial court erred by refusing to instruct the jury on §§392 and 393 of 2 Restatement Torts, 2d.* **** 6 The court gave the standard jury instructions on the plaintiffs theory of negligence (SJI 10.01-10.03, 10.05, 15.01-15.03, 15.05), negligent design (SJI 25.31, 25.32), and breach of implied warranty (SJI 25.01, 25.02, 25.21, 25.22) and an instruction on negligent entrustment from 2 Restatement Torts, 2d, § 390. We have reviewed the instructions as a whole and conclude that the instructions requested would be redundant to the other instructions and would run afoul of the Supreme Court’s opinion in Fredericks v General Motors Corp, 411 Mich 712; 311 NW2d 725 (1981). In Fredericks the Court determined that a party, to sustain a claim of negligent entrustment, must show. that the sup *832 plier knew or should have known of the receiving party’s propensity to take unreasonable risks of injury. 411 Mich 719. The evidence presented does not support this instuction. For these reasons, the court did not err in refusing to give the requested instructions. III. Industry Standards Instruction Finally, the plaintiff argues that the court erred in refusing to instruct as follows: "In your deliberations you may take into account what the defendant was doing or not doing and what the industry was doing or not doing. An industry, however, may not set its own standard to be judged by, if that standard is less than reasonable prudence. While in many instances common prudence is reasonable prudence, a whole industry may have lagged in the development of the safety of its products. You are the judges of what was or was not reasonable prudence on the part of the defendant.” The trial court refused to give the instruction because it felt that the standard jury instruction concerning the definition of negligence was sufficient and that the instruction requested was argumentative. The trial court’s instructions regarding the definition of ordinary care were extensive. The court fully and properly instructed the jury on the law despite its refusal to give the requested instruction. We therefore find no reversible error. See Coon v Williams, 4 Mich App 325, 338; 144 NW2d 821 (1966). Conclusion The trial court committed harmless error when *833 it disallowed three National Safety Council publications under MRE 707. They were offered for a nonhearsay purpose, an apparent exception to rule 707 as interpreted by the Supreme Court in Stachowiak, and should have been admitted. The error was harmless, though, because other evidence was allowed to show knowledge of the need for guarding dies and the feasibility of such design. When read in their entirety, the jury instructions were correct and complete. No error resulted from the court’s refusal to give additional instructions requested by the plaintiff. The judgment is affirmed. *834 I Footnotes [1] In McComish, the safety code involved was generally recognized and accepted in the construction industry. Thus, as was demonstrated earlier, the plaintiff is attempting to compare statutorily admissible industry standards with nonrecognized standards. [2] These are commonly called "learned treatises” and we will also use that term as a general description. [3] Federal Rule 803(18) provides: "The following are not excluded by the hearsay rule, even though the declarant is available as a witness: "(18) Learned treatises. To the extent called to the attention of an expert witness upon cross-examination or relied upon by him in direct examination, statements contained in published treatises, periodicals, *828 or pamphlets on a subject of history, medicine, or other science or art, established as a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice. If admitted, the statements may be read into evidence but may not be received as exhibits.” When originally proposed, the Michigan rule was identical to the federal rule. See MRE 803 — Original Proposal, Michigan Court Rules Annotated, Evidence Rules, p 673 (1979). [4] It was brought out on cross-examination of the plaintiff’s expert that the section of the American Standards Association publication relied upon by the plaintiff was actually a suggested, and not mandatory, standard for guarding dies. Thus, although the publication was admitted as substantive evidence, its appropriateness as a true industry standard is questionable. [5] The defendant has argued that the three publications would have *831 been cumulative to the other evidence and would be properly excludable under MRE 403. Because the trial court ruled those publications inadmissible ab initio under MRE 707, it did not address this issue. We are unable, then, to review the trial court’s action on this point. In light of our affirmance, there is also no need to. Our decision is limited to the "harmless” aspect of the error, and does not involve the merits of Ford’s MRE 403 claim. [6] Section 392 states: "One who supplies to another, directly or through a third person, a chattel to be used for the supplier’s business purposes is subject to liability to those for whose use the chattel is supplied, or to those whom he should expect to be endangered by its probable use, for physical harm caused by the use of the chattel in the manner for which and by persons for whose use the chattel is supplied "(a) if the supplier fails to exercise reasonable care to make the chattel safe for the use for which it is supplied, or "(b) if he fails to exercise reasonable care to discover its dangerous condition or character, and to inform those whom he should expect to use it.” Section 393 states: "One who supplies through a third person a chattel to be used for the supplier’s business purpose is subject to liability under the rules stated in §§ 391 and 392 although the dangerous character or condition of the chattel is discoverable by an inspection which the third person is under a duty to the person injured to make.”