COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67705 LLOYD W. SPRINGER, JR., : : Plaintiff-Appellee : Cross-Appellant : : JOURNAL ENTRY vs. : and : OPINION EMERSON ELECTRIC CO., : : Defendant-Appellant : Cross-Appellee : DATE OF ANNOUNCEMENT OF DECISION : SEPTEMBER 14, 1995 CHARACTER OF PROCEEDING : Civil appeal from : Common Pleas Court : Case No. 237613 JUDGMENT : AFFIRMED IN PART, REVERSED : IN PART AND REMANDED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellee/ Lawrence W. Corman cross-appellant: 1617 Superior Building 815 Superior Avenue, N.W. Cleveland, Ohio 44114 For defendant-appellant/ Frank J. Cumberland cross-appellee: Frank R. DeSantis David P. Lodwick KAUFMAN & CUMBERLAND 1404 East Ninth Street Suite 300 Cleveland, Ohio 44114-1779 Richard M. Markus PORTER, WRIGHT, MORRIS & ARTHUR 1700 Huntington Building 925 Euclid Avenue Cleveland, Ohio 44115-1405 John L. Tate SITES & HARBISON 1800 Providian Center 400 West Market Street Louisville, Kentucky 40202-3352 -3- NAHRA, J.: Defendant-appellant, Emerson Electric Co., is appealing the trial court's entry of final judgment in favor of plaintiff- appellee, Lloyd W. Springer, Jr., and the trial court's denial of its motion for a new trial. Appellant contends the trial court erred in denying its motion for a directed verdict and instructing the jury on the issues of manufacturing defects and failure to warn. Emerson Electric also asserts the trial court erred in admitting evidence of prior claims and pretrial discovery proceedings. Lloyd Springer cross-appeals, contending the trial court failed to award him certain litigation expenses and prejudgment interest. For the following reasons, we affirm in part and reverse in part. Lloyd Springer was injured when he fell off an eight foot stepladder, model FS1508, manufactured by a subsidiary of appellant known as Louisville Ladder. Springer, an electrician, was at work when the accident happened. The ladder was provided by Springer's employer. Appellee climbed the ladder to the fourth or fifth step when he felt the ladder tilt to the left. Springer attempted to balance the ladder to the right, but then fell to the right, against a wall. His right elbow landed on a floor track and the elbow was seriously injured. Springer said no other part of his body was injured or bruised. Springer did not read any warnings printed on the ladder. -4- An eyewitness, Gladys Jackson, observed the ladder rock to the left and then to the right, before the plaintiff fell. She did not see the plaintiff's body come in contact with the ladder when plaintiff was falling. Jackson and other witnesses stated appellant's body landed several feet away from the ladder. After the accident, the fiberglass rails on both sides of the front of the ladder were bent inwards, below the first step. The plaintiff's expert, Dr. Harkness, testified that when the ladder tipped, the rails buckled inward. The ladder rails buckled because they lacked the necessary compression strength. Thus, the ladder was unsafe and failed to meet the manufacturer's advertised representations. Dr. Harkness felt the design was defective because of the slenderness of the rails, and use of fiberglass rails. He felt a warning should have been placed on the ladder that fiberglass ladders are easier to tip, and that the rails may buckle if the ladder is tipped. Harkness said he did not know if there was a manufacturing defect. Morrison Molded Fiberglass, the rail manufacturer, had a specification for fiberglass content in the rails of 56.2%. Harkness did not know the tolerances for the fiberglass content specification. The ladder in question had 64.3% fiberglass, according to Harkness's tests. Too much fiberglass and too little resin results in decreased compressive strength. The defense experts included John Tickle, president of Morrison Molded Fiberglass, and Thomas Schmitt, appellant's director of engineering. Defendant's experts testified that it was -5- impossible for the ladder rails to have buckled inward when the appellee climbed the ladder. The defense experts asserted appellee tipped the ladder and fell off. As appellee fell, his body struck the ladder causing the rails to bend inwards. Appellee and the ladder then fell a distance away from each other. Plaintiff's expert, Dr. Harkness, opined that the scenario presented by the defense was impossible. John Tickle testified that the rails produced for the subject ladder had the required compression strength and Harkness's results were incorrect. On cross-examination, Tickle stated he never had a rail failure in ten years. Appellant required Morrison to produce rails in accordance with ANSI (American National Standard Institute) standards. ANSI lists only the physical properties required for the rails and does not specify a fiberglass content. Tickle "shoots for" 56.2% fiberglass, with a 3% tolerance. In opening and closing statements, plaintiff referred to claims made by others against the defendant. An objection to these remarks in opening statements was sustained. Appellee showed photographs to his expert, Dr. Harkness, from another case against appellant, known as Haynes. The ladder in Haynes was a model FS1000, which had the same rails as the ladder in question. Harkness opined that the Haynes ladder had damage similar to the ladder in question. These photos were not admitted. Defense expert Thomas Schmitt was asked if his predecessor, who retired in 1991, had testified in "hundreds of cases" for -6- Louisville Ladder. Schmitt replied his predecessor had probably testified in over one hundred cases. Plaintiff asked Schmitt about defendant's answers to interrogatories, which Schmitt completed. An interrogatory asked for a list of claims of ladder failures for ladders of similar design. Plaintiff asked why Haynes, Quigley, Ogletree and a "Chicago case" were not listed in defendant's response. Plaintiff showed Schmitt a photograph purportedly from the Quigley case. Schmitt identified the photograph as an FS1500 model ladder. The photograph was not admitted and is not in the record. After this testimony, Schmitt testified that in the twenty cases he was involved in, none of the ladders were defective. On re-direct, Schmitt stated the Haynes claim was not included because the attorneys agreed to limit discovery to the FS1500 model ladders only. Schmitt never heard of Ogletree or Quigley. Attached to appellant's motion for a new trial is an affidavit of appellant's vice president, stating no claim had been filed by an Ogletree or Quigley. Appellee submitted an affidavit from Bette King, Esq., stating she discussed Quigley's accident with appellant's Florida attorney about a month before the trial of this case. The Quigley accident did not occur until after plaintiff made his discovery request concerning other ladder failures. Quigley did not file a complaint until after Springer's trial was completed. The Haynes accident also did not occur until after the discovery request. The plaintiff became aware of Haynes during a -7- deposition of defendant's expert, John Tickle. Plaintiff requested information about Haynes from defendant. Plaintiff claimed in his motion for discovery sanctions that defendant did not comply with this request. Appellant's motion for a new trial also included correspondence between the attorneys, purportedly showing they agreed to limit discovery to claims involving FS1500 model ladders. A letter written by defense counsel proposes limiting discovery to claims involving model FS1500 ladders dating back for a five year period. Plaintiff wrote back, agreeing to the five year period, but did not agree to limit discovery to a particular model. Shortly before the trial, the trial court denied appellee's motion for discovery sanctions for appellant's failure to provide other ladder failure claims. It appears the attorneys did not receive notice of this ruling until after the trial. Judge Lillian Greene ruled on the pretrial motions in this case, but Judge George McMonagle heard the trial. I. Appellant's first assignment of error states: THE TRIAL COURT ERRED BY ADMITTING IRRELEVANT AND UNFAIRLY PREJUDICIAL EVIDENCE OF OTHER ACCIDENTS AND FICTITIOUS CLAIMS. (Tr. 745-765.) In general, in a strict products liability action, the plaintiff does not need to prove the manufacturer knew of the defect. Onderko v. Richmond Mfg. Co. (1987), 31 Ohio St.3d 296. Thus, evidence of other accidents, when offered to prove knowledge -8- of a defect is irrelevant. Id. Evidence of other accidents may be relevant to prove knowledge and foreseeability of risks, which are relevant to failure to warn and design defect claims. Renfro v. Black (1990), 52 Ohio St.3d 27, 31-32, Felden v. Ashland Chem. Co. (1993), 91 Ohio App.3d 48, 60-61. The other accidents are only admissible if the proponent demonstrates the other accidents are substantially similar to the case at hand. Renfro, supra; Felden, supra; Deans v. Allegheny Int'l. (USA), Inc. (1990), 69 Ohio App.3d 349. Also, the trial court has the discretion to determine if the other accidents are more prejudicial than probative. Id. There was evidence the Haynes ladder employed the same type of rails as the ladder in question, and the ladder sustained similar damage. The Haynes case was substantially similar to the case at bar. Quigley involved the same model ladder. The Quigley photos are not in the record. We will presume the photographs show similar damage because this court must presume regularity. See Knapp v. Edwards Laboratories (1980), 61 Ohio St.2d 197, Volodkevich v. Volodkevich (1989), 48 Ohio App.3d 313. Thus, the trial court did not abuse its discretion in admitting evidence of the Haynes and Quigley accidents for the purpose of showing failure to warn and design defects. There was no evidence showing the "Chicago Case" or the "hundreds of other cases" were substantially similar to the case at hand. These cases are not admissible to show failure to warn or a design defect. Appellee asserts the other cases were offered to impeach Tickle's statement the he never had a rail failure. There -9- was no evidence the "Chicago Case" or the "hundreds of other cases" involved rail failures. The evidence was not offered to impeach Schmitt's statement that in the twenty cases he was involved in, none of the ladders were defective. Schmitt made his statement after he was questioned about the other cases. As will be discussed below, these cases were admissible to impeach Schmitt's credibility. The Ogletree case apparently does not exist, but was a mistaken reference to Quigley. We find the appellant was not prejudiced by appellee's mistaken reference to an Ogletree case. See Evid.R. 103(A). The other accidents appellee introduced into evidence were admissible. Accordingly, this assignment of error is overruled. II. Appellant's second assignment of error states: THE TRIAL COURT ERRED BY ADMITTING REFERENCES TO, AND MISREPRESENTATIONS OF, PRETRIAL DISCOVERY PROCEEDINGS. (Tr. 745-765.) Specific instances of conduct of a witness may be inquired into on cross-examination of the witness, for the purpose of attacking the witness's credibility, only if the specific instances of conduct are clearly probative of the truthfulness or untruthfulness of the witness. Evid.R. 608(B), Weider v. Blazic (1994), 98 Ohio App.3d 321. The trial court has discretion in determining whether the witness's prior conduct is probative of -10- truthfulness. Weider, supra, State v. Shields (1984), 15 Ohio App.3d 112. A person's failure to divulge information requested in discovery may be probative of truthfulness. The plaintiff's interrogatory requested information on all ladder failures for ladders of similar design. Schmitt failed to mention the Chicago case, hundreds of other cases, Quigley and Haynes in response to this interrogatory. Appellant contends the parties agreed to limit this interrogatory to cover only certain model ladders. The correspondence attached to appellant's motion for a new trial did not show the parties actually agreed to such a limitation. Although Schmitt was unaware of Haynes at the time of the interrogatories, appellee later asked appellant for information about Haynes. Thus, appellant had a duty to supplement its response. See Civ. R. 26(E)(3). It was disputed whether appellant promptly supplied information about Haynes. The Quigley accident also did not occur until after the interrogatories were served. Appellee never made a subsequent request, except for requesting information about Haynes. Appellant did not have a duty to supplement its response to include Quigley. Civ. R. 26(E). Plaintiff's inquires about the failure to divulge Quigley was not probative of Schmitt's truthfulness, because Schmitt had no duty to disclose the information. However, any error was harmless because the trial court could find that there were other cases which Schmitt had the duty to disclose and did not -11- disclose. Additionally, Quigley was admissible to show a design defect, as discussed above. The fact that the trial court did not issue sanctions against appellant did not prove Schmitt was justified in not providing the discovery. Sanctions cannot be imposed unless an order of the court was violated or the party completely failed to answer the interrogatories. Civ.R. 37(B), (D). Appellee's motion to compel discovery was not ruled upon by the trial court. Appellant contends the evidence of discovery proceedings should have been excluded from evidence because it was more prejudicial than probative. The trial court had the discretion to determine whether this evidence was more probative than prejudicial. See Deans, supra. This case is distinguishable from Burwell v. American Edwards Labs. (1989), 62 Ohio App.3d 73, 85, where the trial court determined certain discovery documents were more prejudicial than probative. The failure to provide discovery about the other claims refers to extrinsic acts of defendant-appellant, as well as the witness, Schmitt. While extrinsic acts of the defendant are not admissible to prove the defendant acted in conformity therewith, such evidence is admissible for other purposes, such as impeaching the credibility of a witness. Evid.R. 404(B), see State v. Maupin (1975), 42 Ohio St.2d 473, State v. McCornell (1993), 91 Ohio App.3d 141, 147. In conclusion, the trial court did not abuse its discretion in admitting evidence concerning appellant's failure to -12- provide discovery concerning other accidents, because such evidence was probative of the credibility of Schmitt. Accordingly, this assignment of error is overruled. III. Appellant's third and fifth assignments of error state: III. THE TRIAL COURT ERRED BY DENYING THE DEFENDANT- APPELLANT'S MOTION FOR DIRECTED VERDICT ON THE ISSUE OF MANUFACTURING DEFECT. (Tr. 649-650.) V. THE TRIAL COURT ERRED BY DENYING THE DEFENDANT- APPELLANT'S MOTION FOR DIRECTED VERDICT ON THE ISSUE OF FAILURE TO WARN. (Tr. 649-650.) Appellant waived any error in the court's denial of its motion for directed verdict because appellant failed to renew its motion at the conclusion of all the evidence. Helmick v. Republic- Franklin Ins. Co. (1988), 39 Ohio St.3d 71, Felden v. Ashland Chem. Co. (1993), 91 Ohio App.3d 48. Accordingly, these assignments of error are overruled. IV. Appellant's fourth assignment of error states: THE TRIAL COURT ERRED BY INSTRUCTING THE JURY ON MANUFACTURING DEFECT. (Tr. 956-957.) Appellant asserts there was no evidence showing a manufacturing defect, so the jury should not have been given an instruction on this issue, over appellant's objection. See Patterson v. Ravens-Metal Products, Inc. (1991), 72 Ohio App.3d 216, 226, Helmick, supra. We find that there was sufficient evidence from which reasonable minds could conclude the ladder was -13- defectively manufactured, thus warranting a jury instruction on this issue. Patterson, supra. Even if appellee abandoned the theory of manufacturing defect in his pretrial motion for sanctions, the issue was tried by consent of the parties. See Civ.R. 15(B), State ex rel. Evans v. Bainbridge Twp. Trustees (1983), 5 Ohio St.3d 41. Even if the trial court erred in instructing the jury on the manufacturing defect issue, the two issue rule precludes reversal. A general verdict will not be reversed when a single issue, which is determinative of the entire claim, is tried free from error. Berisford v. Sells (1975), 43 Ohio St.2d 205, McCarthy v. Kasperak (1981), 3 Ohio App.3d 206, 208. Here, the issues of design defect and failure to meet manufacturer's representations were tried free from error and were determinative of the entire claim. The interrogatories submitted to the jury did not reveal whether the verdict was based on a design defect, manufacturing defect, failure to warn or failure to meet representations. Accordingly, this assignment of error is overruled. V. Appellant's sixth assignment of error states: THE TRIAL COURT ERRED BY INSTRUCTING THE JURY ON FAILURE TO WARN. (Tr. 961-962, 966-967.) Appellant asserts that appellee did not show the failure to warn proximately caused his injuries, because appellee did not read the warning. This argument may have merit. See Phan v. Presrite Corp. (Mar. 24, 1994), Cuyahoga App. No. 64821, Mitten v. Spartan -14- Wholesale, Inc. (Aug. 16, 1989), Summit App. No. CV-85-5-1517, unreported. We need not reach this issue, however. Even if the trial court erred in instructing the jury on failure to warn, as discussed above, the two issue rule prevents reversal. Accordingly, this assignment of error is overruled. VI. Appellant's seventh assignment of error states: THE TRIAL COURT ERRED BY DENYING DEFENDANT-APPELLANT'S MOTION FOR A NEW TRIAL. (Order dated August 4, 1994.) Based on our disposition of the above assignments of error, we find appellant was not entitled to a new trial. Accordingly, this assignment of error is overruled. VII. Appellee-cross-appellant's first assignment of error states: THE TRIAL COURT ERRED IN FAILING TO AWARD THE PREVAILING PARTY MANDATORY CASE EXPENSES AND NECESSARY LITIGATION EXPENSES UNDER CIV.R. 54(D) AND C.P.R.SUPP. 12(D)(1)(b)(c). Cross-appellant claimed he should be awarded as costs: expert witness fees, deposition expenses, trial exhibits, and expenses for video recording two doctors, which videos were shown at trial. Litigation expenses may only be taxed as costs if explicit statutory authority so provides. Wiltsie v. Teamor (1993), 89 Ohio App.3d 380 citing Vance v. Roedersheimer (1992), 64 Ohio St.3d 552; McCarthy v. Allstate Insurance Co. (Oct. 27, 1994), Cuyahoga App. -15- 1 No. 66978. There is no statutory authority for awarding expert witness fees, expenses for trial exhibits, and most deposition expenses as costs. See Miller v. Gustus (1993), 90 Ohio App.3d 622, 625. R.C. 2319.27 does provide for the court reporter fees for taking the deposition, sheriff's service of process and witness fees, to be taxed as costs if the deposition is used at trial. Id. Expert witness fees for depositions are not allowed. Id. Cross- appellant is entitled to the reasonable expense for court reporter's fees, service of process and witness fees for any deposition used at trial, as determined by the trial court on remand. Cross-appellant is also entitled to his reasonable expenses for recording the videotape depositions, which were played at trial. C.P.Sup.R. 12(D)(1)(b). C.P.Sup.R.12(D)(1)(b) constitutes statutory authority because the Rules of Superintendence are promulgated pursuant to the Ohio Constitution. C.P.Sup.R. 1(B). Accordingly, this assignment of error is sustained insofar as certain deposition expenses and video recording expenses should have been taxed as costs. Otherwise, this assignment of error is overruled. VIII. Appellee-cross-appellant's second assignment of error states: 1 First Nat'l. Bank v. Progressive Casualty Ins. (1993 Jefferson Co.), 94 Ohio App.3d 368 is not controlling in this jurisdiction, and fails to mention the Vance case. -16- THE TRIAL COURT ERRED IN FAILING TO AWARD PREJUDGMENT INTEREST (R.C. 1343.03). The decision to award or deny prejudgment interest is in the sound discretion of the trial court. Huffman v. Hair Surgeon, Inc. (1985), 19 Ohio St.3d 83, 87. The trial court can award prejudgment interest if it determines that the plaintiff made a good faith effort to settle and the defendant did not make a good faith effort to settle. R.C. 1343.03(C). A party has made a good faith effort to settle if he (1) cooperated in discovery, (2) rationally evaluated his risks and potential liability, (3) did not cause unnecessary delay, and (4) made a good faith monetary settlement offer. Kalain v. Smith (1986), 25 Ohio St.3d 157, 25 OBR 201, 495 N.E.2d 572. If a party holds an objectively reasonable belief that he has no liability, he need not make a settlement offer. Id. Patton v. City of Cleveland (1994), 95 Ohio App.3d 21, 27. Cross-appellant asserts Emerson Electric did not rationally evaluate its potential liability. He also asserts the defendant did not have an objectively reasonable belief it was not liable and was in bad faith for failing to make any settlement offer. Defendant's experts testified the accident happened because Springer tipped the ladder and fell on top of it. These experts stated it was impossible for the accident to have happened as the plaintiff alleged. While plaintiff and the witness, Gladys Jackson, said plaintiff did not fall on the ladder, defendant argued they could be mistaken. The fact that the medical records only reported an elbow injury does not necessarily disprove defendant's theory. Emerson Electric did not perform burn tests, but conducted compression tests on the ladder to evaluate its liability. Defendant never admitted the ladder did not meet the -17- manufacturer's representations. We find that the defendant rationally evaluated its risks and had an objectively reasonable belief it was not liable. The trial court did not abuse its discretion in finding Emerson Electric did not cause unreasonable delay and cooperated in discovery. Defendant failed to provide an expert report before the deposition of plaintiff's expert, as required by Loc.R. 21.1(F) of the Court of Common Pleas of Cuyahoga County, General Division. Defendant asserted plaintiff never asked for such report. While plaintiff filed several motions to compel and for sanctions, the trial court could reasonably have found defendant had good faith reasons for not supplying the discovery, or did supply the information requested. Accordingly, this assignment of error is overruled. The trial court's final judgment in favor of the plaintiff- appellee, and denial of appellant's motion for a new trial is affirmed. The trial court's denial of prejudgment interest is affirmed. The trial court's denial of appellee's expenses of recording the videotape depositions played at trial and certain deposition expenses is reversed. The trial court's denial of appellee's other expenses as costs is affirmed. This case is remanded for further proceedings in conformance with this opinion. -18- This cause is affirmed in part, reversed in part and remanded for further proceedings consistent with this opinion. Costs assessed against defendant-appellant-cross-appellee. It is ordered that a special mandate be sent to said court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. DYKE, P.J., and O'DONNELL, J., CONCUR. JOSEPH J. NAHRA JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time .