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Burman v. Keller Ladders8/20/2001
Lisa Swift was injured in a fall from a ladder. She, her husband, and the trustee in their bankruptcy proceeding sued Keller Ladders, Inc., the successor of the ladder's manufacturer, alleging that defects in the ladder caused her injuries. The jury returned a verdict in favor of Keller. Finding no error, we affirm.
FACTS
In May 1994, Lisa Swift and her husband, Richard Ren, bought a six-foot aluminum ladder designed and manufactured by Keller Industries, Inc. Keller Ladders, Inc. purchased the assets of Keller Industries and is the respondent here. In May 1996, Swift fell from the ladder while using it to take down window curtains and injured her ankle.
Swift, Ren, and Dennis Burman, the trustee in their bankruptcy proceedings, brought a products liability action against Keller Ladders. The jury returned a verdict in favor of Keller Ladders and answered 'no' to the following questions: 'Did the defendant supply a product which was not reasonably safe in construction at the time the product left the defendant's control?'; 'Did the defendant supply a product which was not reasonably safe as designed?'; 'Did the defendant supply a product which was not reasonably safe because adequate warnings or instructions were not provided with the product?'; and 'Did the defendant supply a product which was not reasonably safe because it did not conform to the manufacturer's express warranty?' The trial court entered judgment on the verdict and denied Swift's motion for judgment as a matter of law or for a new trial.
DISCUSSION
Motion for a new trial
This issue pertains to the deposition of one of Swift's experts, Dennis Deegan and has a lengthy background. Swift deposed a former senior design engineer for Keller Industries, Mehram Etesam. Etesam produced blueprints at the deposition showing that the ladder from which Swift fell should have been equipped with knee braces. In June 1999, about a week before trial, Keller's counsel informed Swift's counsel by letter that Etesam determined that he had produced the wrong blueprints. The correct blueprints, which Keller's counsel enclosed with the letter, showed that the model of ladder Swift was using was not supposed to have knee braces.
Swift moved to exclude evidence of the second blueprints. Judge Wynne denied the motion on condition that the trial was continued to September 20, 1999, Keller paid Swift terms in the amount of $6,413 for the expense of additional discovery, and Keller produced Etesam for live testimony at trial. For a reason that is not explained, trial was set for April 3, 2000, rather than September 20, 1999, as ordered.
On March 20, 2000, Keller's counsel informed Swift's counsel that he just learned that Keller had been sold and that Etesam did not work for the company that purchased it and could not be produced for trial. Three days later, Swift filed a motion for sanctions, arguing that the sale took place in November 1999 and the court should sanction Keller for waiting until just before trial to announce that it could not produce Etesam for trial pursuant to the court's order. As one of the proposed sanctions, Swift asked the court to allow only the first blueprint into evidence and to exclude the second one.
The court held a hearing on the motion on March 24, 2000. Swift's counsel told the court that he received information that afternoon from Keller's counsel indicating that Etesam was out of the country and would not be back in time for trial. The court declined to order that only the first blueprint be admitted into evidence. The court suggested postponing the start of trial from April 3 until April 10, when Etesam was suppo
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