[00:00:00] Speaker 00:
24-3023 miller versus CNH industrial sorry about that mr.. Hawes you do not want to argue I Do not please stop I do not may have pleased the court counsel this is a case about an experienced farmer who chose to get off a moving tractor and

[00:00:20] Speaker 00:
that he well understood was against his rule, against all the warnings that were in the tractor and in the manual itself, something he had never done before.

[00:00:29] Speaker 00:
He literally opened the door, looked out, saw the wheels moving, had to miss the dual wheels, and continued to proceed on.

[00:00:37] Speaker 00:
This is a failure to warranty, it's only not a design defect.

[00:00:41] Speaker 00:
I have three primary issues that I want to discuss today.

[00:00:44] Speaker 00:
The first being whether the court erred in not granting either summary judgment or judgment as a matter of law after hearing the evidence and not submit this case to the jury on a failure to warn because it's an open and obvious condition.

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The other two issues that I want to touch on deal with an issue of whether there should be a new trial in the event the court

[00:01:04] Speaker 00:
here doesn't flip or reverse the trial court on the judgment as a matter of law.

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And that is number one that the trial court aired and given the Kansas compared to fault instruction and whether that violated rule 49 federal rules of procedure.

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And then secondly,

[00:01:21] Speaker 00:
generally that the court denied a new trial as a result of some individual and collective misconduct on the part of counsel that I believe prejudiced the jury against CNH.

[00:01:35] Speaker 00:
Issue number one that I want to talk about, the open and obvious condition.

[00:01:39] Speaker 04:
Let me stop you first because we have an argument that you can't raise that because you raised it on summary judgment and the court determined that there was an issue of fact.

[00:01:50] Speaker 04:
and that you're therefore precluded from raising it here?

[00:01:55] Speaker 00:
Yes, Your Honor.

[00:01:56] Speaker 00:
If there are genuine issues of material fact, those are fact issues, but the issue has been preserved.

[00:02:04] Speaker 00:
We raised it in it.

[00:02:05] Speaker 00:
Jamal, arguing that this is a matter of law for the court, that this isn't something that should be submitted to the jury, that's been preserved.

[00:02:13] Speaker 00:
I believe in our motion for summary judgment, it was preserved in our

[00:02:16] Speaker 00:
Motion for J-Mall after the plaintiff's evidence as well as our oral J-Mall after the close of all evidence and again post-trial.

[00:02:25] Speaker 00:
So I believe we have adequately raised all those issues throughout.

[00:02:28] Speaker 04:
And so if it were an issue of fact, it would be barred because of the summary judgment, but you're arguing that it should be viewed as an issue of law and therefore it's not barred.

[00:02:41] Speaker 00:
Well, I'm not sure it would be barred even

[00:02:44] Speaker 00:
by the summary judgment, Your Honor, because it still is an issue of law.

[00:02:48] Speaker 00:
And where there is an issue of law, the court should have granted that summary judgment.

[00:02:53] Speaker 00:
So I don't think it should be barred.

[00:02:55] Speaker 00:
But if there's a genuine issue of material fact, then it's a jury question, I think, is the issue and was the response to that.

[00:03:02] Speaker 01:
So just passing that, what do you view the open

[00:03:13] Speaker 00:
an obvious condition to be?

[00:03:16] Speaker 00:
The open and obvious condition, Your Honor, is that you do not exit a tractor while it's in motion or moving.

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You bring the tractor to a stop and set the brakes.

[00:03:25] Speaker 00:
That is undisputed, that that is an open and obvious condition.

[00:03:29] Speaker 00:
And I'd submit to the Court that under Kansas law, the 6305,

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Plaintiff's Council admitted that that is common sense and open and obvious to anyone.

[00:03:42] Speaker 00:
They would know that you never exit a moving tractor.

[00:03:44] Speaker 00:
Number two, so you have the objective standard.

[00:03:47] Speaker 00:
And number two, Mr. Miller himself admitted that he knew and understood you never leave a moving tractor while it's moving.

[00:03:56] Speaker 01:
So if we were talking about my tractor, which it would be open and obvious to anyone that if you got off it when it was moving, it would run over you.

[00:04:06] Speaker 01:
It doesn't have some of the features that this tractor has that are advertised, for lack of a better term, as keeping it safe, where if you get up off the seat, it will stop.

[00:04:21] Speaker 01:
The brake will engage automatically, that type of thing.

[00:04:26] Speaker 01:
Don't we have to look at this and say it's open and obvious that you don't get up and jump off a moving tractor?

[00:04:32] Speaker 01:
And don't we have to add to that?

[00:04:37] Speaker 01:
if the tractor appears to have safety features that will stop it when you get off the seat?

[00:04:43] Speaker 00:
Your Honor, I believe that the answer I would give to that is that the passage that is referenced in the manual in one place that the plaintiff refers to is that if you leave the seat for five seconds that the electronic part break will engage.

[00:05:00] Speaker 00:
It doesn't say it's okay to exit the moving tractor.

[00:05:05] Speaker 00:
Nowhere does it suggest that.

[00:05:07] Speaker 01:
I'm with you, but doesn't that suggest to a reasonable user that if they get up out of the seat, it's going to stop?

[00:05:15] Speaker 00:
It does not or should not, Your Honor, for a couple of reasons.

[00:05:19] Speaker 00:
Number one, Mr. Miller, first of all, admits that he never relied upon that section on the day of the accident.

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Number two, no one else, no one else has relied upon that to say, I can be excused from an open and obvious condition.

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that is getting off of a moving tractor because a provision says that if I do take that risk and hazard that I could be run over when I get off the tractor, that the brake will engage.

[00:05:47] Speaker 00:
What happens, Your Honor, if the incident happens when Mr. Miller slips going down the stairs before the five seconds?

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before the park break engages.

[00:05:57] Speaker 00:
There's no excuse, and Mr. Miller admits, that there is no excuse from the clear, unambiguous, understood warnings to never exit a moving tractor.

[00:06:09] Speaker 01:
Was there any testimony in the trial court about how long it takes to get out of that tractor and be on the ground?

[00:06:15] Speaker 00:
Yes, and Mr. Miller, it was varied, but yes, that he could be potentially on the steps.

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He testified I could be off of the tractor.

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which means he would have had to jump past the dual wheels.

[00:06:27] Speaker 00:
If you saw the picture of the tractor, it's a wide dual wheels.

[00:06:31] Speaker 00:
If you just step down and the tractor's moving, which he observed, you'd be run over.

[00:06:35] Speaker 00:
It could be run over before that five seconds occurs.

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Similarly, if you really wanted to rely upon that, then would you not wait for the tractor to stop?

[00:06:45] Speaker 00:
there's no reasonable perception your honor either that that would take place when the tractors moving because this never occurred before that's not how it works and Mr. Miller never experienced that either before so his whatever argument is being made that his misconception allows him the excuse to avoid what is an admitted open and obvious hazard is I think self-made in the court shouldn't under under

[00:07:11] Speaker 00:
The Hiner case and under the Dakota case, which is an out-of-jurisdiction case.

[00:07:18] Speaker 00:
In other cases, this court has ruled upon the Domler case, the Butler case.

[00:07:22] Speaker 00:
This is not something that should excuse him from what are adequate warnings that exist.

[00:07:29] Speaker 02:
Don't you have a situation where the... I mean, one way to interpret the argument is that getting off a moving tractor is open and obvious.

[00:07:41] Speaker 02:
I'll spot you that, but here the manufacturers designed some safety features, including an automatically engaged parking brake.

[00:07:52] Speaker 02:
Maybe there's a design defect theory here, and I understand your argument there, but isn't the problem here is that they decided to provide a warning

[00:08:02] Speaker 02:
And maybe the warning was inadequate or confusing or didn't go far enough.

[00:08:11] Speaker 02:
So once the company decided to do a warning, which maybe it didn't have to under Kansas law, but once it did, the warning has to adequately communicate the danger.

[00:08:23] Speaker 02:
And here, the warning says,

[00:08:28] Speaker 02:
Park brake automatically engages if the operator leaves the seat for more than five seconds.

[00:08:34] Speaker 02:
Why couldn't a reasonable operator interpret that as, I'm up for five seconds, boom, it engages.

[00:08:40] Speaker 00:
If that is already in context with the operator's manual, Your Honor, which I believe that they should be doing, number one, that provision is in the operational section, not in the safety and warning section that display dangers, hazards, warnings, cautions.

[00:08:55] Speaker 00:
That is an instruction.

[00:08:57] Speaker 00:
Our position, of course, is that all of those situations where

[00:09:01] Speaker 00:
the operator leaves the seat for five seconds.

[00:09:03] Speaker 00:
That occurs while the tractor stopped.

[00:09:05] Speaker 00:
Mr. Miller conceded, and I'll read the court some of his testimony in a moment, or reference his testimony, where he concedes that that section, where it refers to leaving the seat for five seconds, is in the discussion about park breaks.

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all of which occur when the tractor is parked.

[00:09:22] Speaker 00:
The park brake engages when you shut off the key, occurs when it's parked.

[00:09:29] Speaker 00:
The park brake engages 45 seconds

[00:09:31] Speaker 00:
if the operator's sitting in the seat, if there's no movement, the tractor is stopped.

[00:09:36] Speaker 00:
Mr. Miller conceded that he knew and understood that section referred to when the tractor was stopped.

[00:09:44] Speaker 04:
So to make it subjective... Well, he certainly testified that he believed that it would stop in five seconds when he got out of the seat on this occasion and exited the tractor.

[00:09:59] Speaker 00:
He did testify to that, Your Honor, for sure.

[00:10:02] Speaker 04:
So why isn't it, you know, you've got, you want to define the open and notorious issue in a way is different than what the facts are.

[00:10:11] Speaker 04:
And as the district court said, it's not the issue that's before it, the way you keep wanting to define the issue.

[00:10:19] Speaker 04:
Why isn't it proper?

[00:10:20] Speaker 04:
to let the jury do exactly what it did and allocate the fault between the two of them.

[00:10:27] Speaker 04:
Maybe you're right.

[00:10:28] Speaker 04:
Maybe even if he believed it would engage in five seconds, it was negligent not to wait till it stopped before he jumped off the tractor.

[00:10:38] Speaker 04:
So maybe that's why the jury decided he was partially negligent here.

[00:10:44] Speaker 00:
I believe that in that analysis, Your Honor, the court would be

[00:10:50] Speaker 00:
overturning long-standing Kansas law, as well as what this district court has done in terms of when a hazard is open and obvious.

[00:10:59] Speaker 00:
And I do go back to always the hazard in this case is that you're exiting a moving tractor subjecting you to be run over or injured because of that scenario.

[00:11:08] Speaker 00:
There is no excuse for that ever.

[00:11:11] Speaker 00:
So the law would then be reading that it's okay

[00:11:16] Speaker 00:
to violate an open and obvious hazard for which number one under Kansas law you don't even need a warning, but number two there were warnings that were clear and adequate that Mr. Miller knew and understood.

[00:11:28] Speaker 00:
then ignored those warnings.

[00:11:30] Speaker 00:
So the court would be citing a precedent, I think, that it's okay to ignore those clear and unambiguous warnings when that should not be the case.

[00:11:39] Speaker 00:
And Kansas law doesn't support that under 3305, nor did that get supported in the Heiner case.

[00:11:46] Speaker 00:
And the argument, I think, what the court is getting at here and what the plaintiffs is, is that there's two separate risks, I think, is what the issue is here.

[00:11:55] Speaker 00:
And Heiner looked at that, Your Honor,

[00:11:57] Speaker 00:
I've spent time trying to really understand that from the perspective that the Heiner case was the guy who had a bail fall over on him.

[00:12:05] Speaker 00:
And the issue was that John Deere should have warned about having a ROPS or

[00:12:12] Speaker 00:
other devices that would prevent that.

[00:12:16] Speaker 00:
What he didn't know about was the loader unintentionally going up.

[00:12:20] Speaker 00:
And so that was a new risk that he didn't understand.

[00:12:23] Speaker 00:
And when he thought he was carrying the load low, he thought it was safe to do so.

[00:12:28] Speaker 00:
That came on unexpectedly, and the court allowed that to be a fact question.

[00:12:32] Speaker 00:
That doesn't exist here.

[00:12:33] Speaker 00:
There was never an excuse by Mr. Miller to know and understand that he could have, that it was safe to get out of a moving tractor.

[00:12:42] Speaker 00:
It didn't say it's safe to get out of a moving tractor when it said the park break would engage in five seconds.

[00:12:47] Speaker 00:
So I believe, Your Honor, that this would set a bad precedent under Kansas law.

[00:12:54] Speaker 00:
I'm going to quickly touch on the second issue I wanted to do,

[00:12:58] Speaker 00:
Rule 49, that the court allowed the plaintiff to argue the comparative fault analysis.

[00:13:04] Speaker 00:
And it is clear in this case, Your Honor, in doing that, that it violated the affiliated case in federal court that that didn't happen.

[00:13:12] Speaker 00:
But most importantly, the plaintiff's attorney argued consistently that this is what will happen if you find 50% or more Mr. Miller recovers nothing.

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And the example of that happening was the jury awarded Mrs. Miller

[00:13:28] Speaker 00:
$500,000 award when the pretrial demand was 300 to get to the mathematical equation of the jury result.

[00:13:35] Speaker 00:
That's exactly why Rule 49 in federal court says don't do that.

[00:13:41] Speaker 00:
So that is an error that should have not occurred.

[00:13:44] Speaker 00:
We clearly had a jury that

[00:13:46] Speaker 00:
came to a conclusion based on their desires from passion and prejudice.

[00:13:51] Speaker 00:
And then finally, Your Honor, this design issue permeated this case.

[00:13:55] Speaker 00:
And the argument was, if you get out of a tractor and it's moving, it won't stop until it hits a school or a bus or something else.

[00:14:01] Speaker 00:
That's a design defect case that they dismissed.

[00:14:03] Speaker 00:
We brought motions and limiting on that.

[00:14:05] Speaker 00:
And we tried to make sure it didn't get intertwined because it's so close to this failure to warn issue.

[00:14:12] Speaker 00:
But it continued to go on.

[00:14:14] Speaker 00:
over time and time again.

[00:14:16] Speaker 00:
Was there?

[00:14:16] Speaker 00:
I'm sorry, go ahead.

[00:14:17] Speaker 04:
Was that the only statement that you identify as was the one where it said it would keep running until it hit?

[00:14:26] Speaker 00:
That was an opening, Your Honor.

[00:14:27] Speaker 00:
They also did it throughout with questions.

[00:14:29] Speaker 00:
Even even the judge pointed out that this is sounding like a design defect case as opposed to a fair to warn They did it with fear to produce evidence Witnesses about design so they brought it up numerous times your honor many times And it's in the record.

[00:14:46] Speaker 00:
I'll refer back.

[00:14:47] Speaker 02:
I want to save just 20 seconds whatever I have I'm sorry Let him go ahead because I forgot my question Let's let's hear from thank you opposing counsel

[00:15:03] Speaker 05:
May I please the court?

[00:15:05] Speaker 05:
My name is Gay Tibbetts, and I represent Brian Miller, whose life changed in 2018 when the entire length of his body was run over by a seed drill that was being pulled by his case New Holland tractor.

[00:15:18] Speaker 05:
I want to talk about what you're worried about and what Mr. Haas had difficulty articulating, and that is our position in this case and how it follows 10th Circuit and Kansas law.

[00:15:30] Speaker 05:
Their primary argument is that the court should have ruled, both at summary judgment and after trial, that as a matter of law, it had no duty to Brian Miller because the danger of exiting a tractor was open and obvious.

[00:15:48] Speaker 01:
Tell me this before you go there.

[00:15:50] Speaker ?:
Yes.

[00:15:50] Speaker 01:
Does it mean, do you agree that he never read the whole manual, including the parts about, don't jump off this tractor while it's moving?

[00:15:58] Speaker 05:
No, I disagree with that wholeheartedly.

[00:16:00] Speaker 05:
He went painfully through everything.

[00:16:03] Speaker 01:
Before it happened, the testimony is, when we look at the record, the testimony will be that he read all the relevant parts.

[00:16:09] Speaker 05:
Yes, absolutely.

[00:16:10] Speaker 01:
Because that sounds different than what I heard.

[00:16:13] Speaker 01:
From your opposing counsel.

[00:16:14] Speaker 01:
Okay.

[00:16:14] Speaker 05:
Thank you.

[00:16:15] Speaker 05:
Okay.

[00:16:16] Speaker 05:
But here's the deal.

[00:16:17] Speaker 05:
Know that on that day when Brian left the tractor, right, he did not think he was leaving a moving tractor and he was assuming that risk.

[00:16:28] Speaker 05:
He thought he was leaving a moving tractor that was about to stop.

[00:16:32] Speaker 05:
Okay.

[00:16:32] Speaker 05:
And that's the problem.

[00:16:33] Speaker 05:
And 10th Circuit law in Heiner.

[00:16:36] Speaker 04:
So you would agree that exiting a moving tractor

[00:16:42] Speaker 04:
that you don't think is going to stop would be, in fact, an open and obvious danger that nobody needs to warn you about.

[00:16:51] Speaker 05:
I would think that, yes.

[00:16:53] Speaker 05:
I would think that.

[00:16:53] Speaker 05:
And I would also point out, though, that he keeps talking about that the statute refers to open and obvious, but it does.

[00:16:58] Speaker 05:
But it also says that it should have been realized by a reasonable user or consumer.

[00:17:03] Speaker 05:
So he's saying, as a matter of law, you need to decide

[00:17:06] Speaker 05:
A, that the open and obvious thing that hurt him was just that he left the moving tractor and ignore that he left the moving tractor he thought was going to stop, and B, that you ought to rule as a matter of law that a reasonable person wouldn't have done that.

[00:17:20] Speaker 05:
And Judge Krauss said two different times, I'm not going to do that.

[00:17:23] Speaker 05:
You've got evidence here of that he didn't, that the danger of leaving the tractor when he thought it was going to stop is a different danger than just leaving a tractor out of the blue.

[00:17:35] Speaker 05:
which is also the, when he took that risk, 10th Circuit Law, and I think two of the cases that helped the most are Burton, which is a smoking case, is that if the danger that you're saying is open and obvious is not the danger that actually injured you, then there is a duty to warn.

[00:18:00] Speaker 05:
In Burton, for example, one of the questions was, well, you knew that smoking was bad for you.

[00:18:06] Speaker 05:
And Mr. Burton said, well, I lost my legs because smoking destroyed my cardio, I mean my...

[00:18:11] Speaker 05:
Starts with a V. Anyway, my vascular system.

[00:18:15] Speaker 05:
Exactly.

[00:18:16] Speaker 05:
And they said, well, that's a different, you know, what happened to you is different than that warning that you got about cancer.

[00:18:24] Speaker 04:
I'm sorry?

[00:18:24] Speaker 04:
It isn't here.

[00:18:25] Speaker 04:
He got run over by a moving tractor.

[00:18:27] Speaker 05:
He got moved over.

[00:18:29] Speaker 05:
He got run over by the thing the tractor was pulling.

[00:18:31] Speaker 05:
Well, he didn't get hit by his tractor.

[00:18:33] Speaker 05:
Well, you say there's no difference, but Mr. Hawes said, you know, he was going to get hit by the, even if it hadn't had time to stop, he was going to get hit by the wheel.

[00:18:41] Speaker 05:
No, he wasn't.

[00:18:42] Speaker 05:
He cleared the wheel.

[00:18:44] Speaker 05:
He was down in front of the thing, and if it had stopped, and remember, he was dragged, or he continued to be held above that seed drill for quite some time.

[00:18:56] Speaker 05:
And had the tractor stopped, that would not have happened.

[00:19:00] Speaker 01:
Let me see if I understand exactly what happened.

[00:19:03] Speaker 01:
So he makes it past the wheel.

[00:19:04] Speaker 05:
Yes, absolutely.

[00:19:05] Speaker 01:
It's moving, he gets past the wheel.

[00:19:08] Speaker 01:
Absolutely.

[00:19:08] Speaker 01:
And then the next thing he's doing is bending over to pick something up when the drill hits him.

[00:19:13] Speaker 05:
Yes.

[00:19:13] Speaker ?:
OK.

[00:19:14] Speaker 05:
The drill hits him, and he gets lodged kind of under a wheel.

[00:19:18] Speaker 05:
And then he goes along with that drill for a while.

[00:19:23] Speaker 05:
And then eventually he's pulled under and run over.

[00:19:25] Speaker 01:
Right.

[00:19:25] Speaker 01:
Well, but that doesn't matter.

[00:19:27] Speaker 01:
It could have drug him for two seconds additionally.

[00:19:31] Speaker 01:
And it would be a substantial injury.

[00:19:34] Speaker 05:
Well, but he would have been run.

[00:19:36] Speaker 01:
The length of his body would not have been run over by this.

[00:19:38] Speaker 01:
It shows it didn't stop in five seconds.

[00:19:39] Speaker 05:
The length of the body would not have been run over by those discs.

[00:19:43] Speaker 04:
So if it's an open and obvious danger to jump off a moving tractor, and you believe if you get out of the seat it's going to stop in five seconds.

[00:19:55] Speaker 05:
Five seconds after you've left the seat.

[00:19:57] Speaker 03:
So of course you're going to be up, open the door.

[00:20:00] Speaker 03:
Would a reasonable person wait five seconds before they jump off the tractor?

[00:20:04] Speaker 05:
Should he have done that?

[00:20:05] Speaker 05:
Absolutely.

[00:20:06] Speaker 05:
I mean, that's why he got a substantial amount of the fault.

[00:20:09] Speaker 05:
He got a substantial amount of fault here.

[00:20:11] Speaker 02:
It's an open and obvious risk or danger to get out of any moving vehicle while it's moving, not just this tractor.

[00:20:20] Speaker 02:
And would any reasonable person think that a vehicle's parking brake would be the appropriate way to stop a moving motor vehicle?

[00:20:31] Speaker 05:
Right.

[00:20:32] Speaker 05:
I'm glad you brought up the parking incident.

[00:20:33] Speaker 05:
This is called an electronic park brake.

[00:20:37] Speaker 05:
It sets automatically so that he doesn't have to set the brake when either the tractor's been still for 45 seconds when he turns the key off or

[00:20:48] Speaker 05:
according to the manual, when the operator leaves the seat for five seconds.

[00:20:51] Speaker 05:
But also, the EPB, which is on the end of the shuttle, which is on the left side of the tractor steering wheel, can be used to slow the tractor.

[00:21:03] Speaker 05:
I mean, that's the video we sent you, that's the part of the manual that we've put out, so that

[00:21:10] Speaker 05:
It's not just the fact that they call it a parking brake.

[00:21:14] Speaker 05:
It doesn't mean it can only be used in parking.

[00:21:17] Speaker 05:
You can use it to slow and stop the tractor.

[00:21:19] Speaker 02:
Was there a warning in the cab?

[00:21:21] Speaker 05:
There was a warning about not getting off the tractor.

[00:21:24] Speaker 05:
There was nothing about what would stop or not stop.

[00:21:26] Speaker 02:
Was there a warning about not leaving a moving tractor?

[00:21:32] Speaker 05:
I believe that there was.

[00:21:36] Speaker 02:
Why wouldn't that adequately

[00:21:39] Speaker 05:
Because he understood from what he had learned from the tractor company that the tractor was going to stop.

[00:21:52] Speaker 05:
It was not going to be a moving vehicle for very long.

[00:21:54] Speaker 05:
He jumped the gun a bit by maybe a few seconds or a second.

[00:21:59] Speaker 05:
Yes, ma'am.

[00:22:02] Speaker 04:
I have a question about the jury instruction telling the jury, hey, you got to make sure you don't assess him more than 50% of the fault or he gets a big goose egg.

[00:22:16] Speaker 05:
OK, so let me explain.

[00:22:18] Speaker 05:
In Kansas, we have comparative fault where the plaintiff, if they get 50% or more, they get zero.

[00:22:25] Speaker 05:
It is the law over in state court.

[00:22:27] Speaker 05:
saw that Judge Krause kept saying across the street there.

[00:22:30] Speaker 05:
But it's the law over in state court that you have to tell the jury that for a number of reasons.

[00:22:35] Speaker 05:
that one being because you don't want a jury in a personal injury case to be calculating damages when the plaintiff's not going to receive anything.

[00:22:45] Speaker 05:
And so that is the law in state court.

[00:22:49] Speaker 04:
But not in federal court?

[00:22:51] Speaker 05:
Well, I mean, it depends.

[00:22:55] Speaker 05:
If it's substantive, it is the law in federal court.

[00:22:58] Speaker 05:
But I understand the argument.

[00:23:01] Speaker 04:
Is it substantive or procedural?

[00:23:04] Speaker 05:
I could make either argument, but I think that Judge Crouse read 41, which gives him discretion about what to do and decided that he was going to err on the side of doing what the state law said.

[00:23:18] Speaker 05:
I mean, I think he said that actually.

[00:23:19] Speaker 05:
He said, if the Tenth Circuit tells me I shouldn't have done it, I'd rather be following the state law.

[00:23:24] Speaker 04:
And so... So now we have to decide.

[00:23:26] Speaker 04:
So, you know, is it substantive or procedural?

[00:23:30] Speaker 05:
It would turn out to be... The result of it would turn out to be substantive if... Well, it doesn't... I don't know that it matters because... It matters hugely because we're sitting in diversity.

[00:23:48] Speaker 05:
Well, I understand that.

[00:23:49] Speaker 05:
I think...

[00:23:51] Speaker 05:
I guess that I would say that it is substantive in that the Kansas courts have said in order for a jury to apply and understand comparative fault, they need to understand how it works.

[00:24:02] Speaker 05:
That's what the Kansas law is.

[00:24:05] Speaker 05:
They need to understand how it works.

[00:24:06] Speaker 05:
They need to understand that, you know, if they give the... That sounds procedural.

[00:24:15] Speaker 01:
Sounds like it's talking about how we're going to advise the jury.

[00:24:22] Speaker 01:
not the effect of what the jury decides.

[00:24:25] Speaker 05:
Well, I do think, though, that there is a public policy in Kansas that they want the jury to understand what comparative fault is.

[00:24:34] Speaker 05:
And we don't have pure comparative fault.

[00:24:36] Speaker 05:
You wouldn't need to tell them if it was pure comparative fault.

[00:24:39] Speaker 05:
But we have that modified version that 50% or more means there's no recovery.

[00:24:43] Speaker 05:
And so the policy of Kansas is when you

[00:24:46] Speaker 05:
ask them to do this, you explain to them how it works, what it does.

[00:24:53] Speaker 04:
But if we were to find it's procedural as opposed to substantive, we'd have to grant a new trial, wouldn't we?

[00:25:00] Speaker 05:
I don't think you would.

[00:25:01] Speaker 05:
If you look at the Rule 41, it says that the court can decide what an appropriate jury verdict is, given what is at stake.

[00:25:13] Speaker 05:
I think that the judge would have discretion to say, I don't want my jury in there calculating damages for two days if the plaintiff's not going to get any.

[00:25:21] Speaker 01:
Is there more than that here?

[00:25:23] Speaker 01:
I mean, when we're looking at this, do we look at it as a situation where we view the instruction as arguably improper, but by itself not creating reversible error, but at the same time

[00:25:43] Speaker 01:
We also have to consider it in the context of argument and trial counsel suggesting to the jury, this person's going to get nothing if you go over the amount.

[00:25:57] Speaker 05:
All I did was read the instruction to them.

[00:25:58] Speaker 05:
I don't know that I've ever been told I can't read an instruction to a jury.

[00:26:01] Speaker 05:
And he didn't object.

[00:26:02] Speaker 05:
Let's remember that, too.

[00:26:04] Speaker 05:
I mean, that's the problem with all of his objection.

[00:26:07] Speaker 05:
arguments is that he didn't object at trial.

[00:26:10] Speaker 05:
And even in his opening brief, he doesn't, you know, here's the objection, here's the ruling, none of that.

[00:26:17] Speaker 05:
It's just sort of vague.

[00:26:19] Speaker 05:
They just kept bringing up the design thing.

[00:26:21] Speaker 05:
And she argued this in closing argument.

[00:26:24] Speaker 05:
I can't imagine that they get a new trial because I read the jury instruction to them.

[00:26:29] Speaker 05:
I mean, that just makes no sense.

[00:26:31] Speaker 04:
Well, it depends on if the jury instruction was wrong, doesn't it?

[00:26:35] Speaker 05:
There is no case that has ever said that this jury instruction would be wrong.

[00:26:40] Speaker 05:
I mean, this would be a brand new idea.

[00:26:42] Speaker 05:
This is the jury instruction that they use over in federal court and in state court every day.

[00:26:47] Speaker 04:
Well, it would be wrong if it's not procedural.

[00:26:52] Speaker 04:
I mean if it's procedural.

[00:26:54] Speaker 05:
If it's procedural.

[00:26:55] Speaker 05:
I don't think that it would be wrong if it's procedural because I don't think that there is a federal law that says you can't tell the jury that.

[00:27:04] Speaker 02:
If you want to talk about the case.

[00:27:05] Speaker 02:
Is it a harmless error?

[00:27:07] Speaker 02:
If it's an error is it harmless?

[00:27:11] Speaker 05:
I would assume so.

[00:27:12] Speaker 05:
But the case that he's relying on, it's not a tort case.

[00:27:18] Speaker 05:
It was just a case where there was already, they weren't going to have to decide damages.

[00:27:25] Speaker 05:
And so what happened is she didn't, Judge Brattle did not tell the jury, by the way, if you give them more than 50% of fault, they're not going to get anything.

[00:27:33] Speaker 05:
And then when they

[00:27:35] Speaker 05:
They came back and said, you know, you should have told them that.

[00:27:39] Speaker 05:
And she said, you know, I don't really have to.

[00:27:41] Speaker 05:
In this case, it doesn't make sense.

[00:27:42] Speaker 05:
There was no reason to tell them.

[00:27:44] Speaker 05:
I have the discretion.

[00:27:46] Speaker 05:
So if you were to say that Judge Kraus made an error using this verdict form that's used in Kansas, that's used in Kansas federal court, that nobody's ever said is a problem, that would be brand new law.

[00:28:07] Speaker 05:
And I agree, I mean, and I agree, who's to say they would have given him 56% if they hadn't been told that?

[00:28:16] Speaker 02:
Yes, sir.

[00:28:19] Speaker 05:
60-3705 a yes there's an exclusion for safeguards why wouldn't the parking brake be a a safeguard that would be and the duty to warn would be excluded under that you know one of the reasons I think it's hard in this case for us to talk about the duty to warn is that is that they're they breach their duty to give a safe instruction you know they have the duty to to give us an instruction for safe use and clearly there was there were problems with

[00:28:46] Speaker 05:
Clearly, if you take the in say, is there evidence to support the jury's verdict that there were problems with these instructions, you would have to agree that there are.

[00:28:54] Speaker 05:
And so when you say is the parking brake, you know, the fact that it'll set itself automatically, is that a safeguard?

[00:29:03] Speaker 05:
I don't know that that would matter in terms of their inability to give an adequate instruction about how it works.

[00:29:12] Speaker 02:
Why wouldn't that be a safeguard?

[00:29:13] Speaker 02:
I mean, it's designed to lower, keep station area, large tractor.

[00:29:22] Speaker 05:
And so you're saying under A or under the statute that says that they don't have a duty to warn about safeguards if it's open and obvious?

[00:29:38] Speaker 05:
I think they do have a duty to instruct and to warn about how the tractor works so that the open and obvious condition that caused his injury was that he did not understand how it worked.

[00:29:56] Speaker 05:
He did not just jump off a tractor.

[00:29:58] Speaker 05:
He left a tractor that he understood, given what they had told him, was going to stop.

[00:30:06] Speaker 00:
Do you have thank you council sure I think give mr.. Hawes two minutes Thank you your honors Number one your honor is a safeguard and and you don't need that for the tractor.

[00:30:25] Speaker 02:
What is a safeguard?

[00:30:26] Speaker 00:
It's not intuitive to me.

[00:30:28] Speaker 00:
It's a lot like the Domler case, where there are additional safeguards that could exist if you had operator awareness signals that came on, if there were flashing lights that came on.

[00:30:40] Speaker 00:
Which, by the way, we did have, and Mr. Miller ignored and admitted he ignored them, as did his expert admit that they ignored them.

[00:30:47] Speaker 00:
So it is a safeguard for which there is no requirement that there be... Did you make that argument in your brief about the safeguard?

[00:30:54] Speaker 00:
It on all of it your honor.

[00:30:55] Speaker 00:
Yes, I mean a safeguard applies to warnings and instructions Yes, and in all of those issues that it applies to everything when there is an open and obvious condition There's not a duty to warn further and it applies equally to warnings and instructions which are safeguards But it's the same I take it to be the same safeguard here the warning or the Heartbreak well the warning your honor is that don't get out of the tractor while it's moving.

[00:31:21] Speaker 02:
What's the safeguard?

[00:31:22] Speaker 00:
Well, the additional safety feature is a park break turns on if an operator leaves the seat for five seconds when it's stopped.

[00:31:30] Speaker 00:
That's an additional safety.

[00:31:32] Speaker 00:
When you turn the key off and the park break engages, that's an additional safeguard in the event that an operator doesn't set the park break when he or she leaves the seat or turns it off, or as they sit there for 45 seconds.

[00:31:47] Speaker 00:
But as I think Judge Carson pointed out, or maybe you, Your Honor,

[00:31:52] Speaker 00:
Warning that existed the ones that have the warning phase the The items that define what a warning is are on the cab of the tractor that Mr. Miller had to grab as he opens the door and looks at directly Do not get out of the tractor while it's moving

[00:32:07] Speaker 00:
or set the park break, do not exit the seat to do that.

[00:32:11] Speaker 00:
So he violated those clear warnings.

[00:32:13] Speaker 00:
Rule 49 is procedural, Your Honor, and it did prejudice in this case.

[00:32:18] Speaker 00:
And we did have motions in the OMA to preclude that.

[00:32:21] Speaker 00:
So the fact that I didn't object to them arguing, I objected throughout the course of the trial.

[00:32:25] Speaker 04:
Do we have any case law about whether an instruction on comparative negligence is procedural or substantive?

[00:32:35] Speaker 00:
Is it okay if I respond, Your Honor?

[00:32:40] Speaker 00:
Yes, the affiliated case is the one that the judge found that it is procedural and that's why the court said I'm not going to do that because if I go further, it violates Rule 49, which is for the judge, the court to do to handle

[00:32:59] Speaker 00:
the evaluation of what's the impact of the verdict.

[00:33:02] Speaker 00:
And when you give that, you've usurped the judge's right in Rule 49, which is procedural.

[00:33:08] Speaker 00:
And you've allowed the jury to make a determination, which in fact we know it's not harmless in this case because they in fact did it.

[00:33:15] Speaker 00:
And we have this in spades because we saw what they did with the comparative fault where they could only award 300 and they calculated how to do exactly that.

[00:33:24] Speaker 02:
Council your time has now expired.

[00:33:26] Speaker 02:
We appreciate the arguments on both sides cases submitted and the