Cullison et al v. Hilti, Inc.

Filing 92

ORDER denying 85 Motion in Limine. Signed by Chief Judge Karen E. Schreier on 11/28/2011. (KC)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
MICHAEL CULLISON, JR.,
and AMBER CULLISON,
Plaintiffs,
vs.
HILTI, INC.,
Defendant.

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CIV. 09-4122-KES

ORDER DENYING PLAINTIFFS’
MOTION IN LIMINE TO
EXCLUDE EVIDENCE OF
CUSTOM AND USAGE

Plaintiffs, Michael Cullison, Jr., and Amber Cullison, filed a tort action
alleging strict liability claims against defendant, Hilti, Inc. On July 18, 2006,
Michael held one end of a piece of steel framing while his co-worker fastened
the other end using a powder-actuated tool distributed by Hilti. The fastener
splintered and a fragment entered Michael’s left eye, causing injury. At the
time, Michael wore a pair of safety glasses that accompanied the tool.
During the November 21, 2011, pretrial conference, Cullisons orally
moved to preclude Hilti from offering any evidence of custom or usage at trial,
including accepted industry standards. Docket 85. The court reserved ruling
and allowed Hilti to respond in writing. Hilti resists the motion. Docket 88. The
motion is denied.
DISCUSSION
Cullisons, citing Miller v. Yazoo Manufacturing Co., 26 F.3d 81 (8th Cir.
1994), argue that “defendant may not introduce evidence of the custom and

usage in the industry to show its lack of fault because the culpability of
defendant’s conduct is not an issue in a strict liability case.” Docket 81 at 1.
Miller, however, stands for the opposite conclusion.
In Miller, a products liability case based on strict liability, the trial court
admitted safety standards, which were published by the American National
Standards Institute (ANSI). Miller, 26 F.3d at 82. The Eighth Circuit reasoned
that while Missouri law created the cause of action, determining whether the
ANSI standards were admissible was a matter of federal law. Id. (citing Adams
v. Fuqua Indus., Inc., 820 F.2d 271, 273 (8th Cir. 1987)). The Eighth Circuit
affirmed the trial court and reasoned that the evidence was relevant “because it
tends to make the existence of an unreasonably dangerous condition more or
less probable than it would be without such evidence.” Id. at 83 (citing Fed. R.
Evid. 402).
South Dakota recognizes that evidence of industry standards is proper as
a “state of the art defense” in a products liability case:
In any product liability action based upon negligence or strict
liability, whether the design, manufacture, inspection, testing,
packaging, warning, or labeling was in conformity with the
generally recognized and prevailing state of the art existing at the
time the specific product involved was first sold to any person not
engaged in the business of selling such a product, may be
considered in determining the standard of care, whether the
standard of care was breached or whether the product was in a
defective condition or unreasonably dangerous to the user.
SDCL 20-9-10.1. Relying on SDCL 20-9-10.1, the Eighth Circuit has held that

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industry standards are relevant and material on the issue of strict liability
under South Dakota law. Robinson v. Brandtjen & Kluge, Inc., 500 F.3d 691,
694-95 (8th Cir. 2007) (citing SDCL 20-9-10.1). This holding is consistent with
long-standing precedent holding that industry standards and customs are
admissible in product liability cases. See, e.g., Poches v. J. J. Newberry Co., 549
F.2d 1166, 1168 (8th Cir. 1977) (reasoning that industry standards are
admissible in a strict liability case); Buchanna v. Diehl Mach., Inc., 98 F.3d 366,
371 (8th Cir. 1996) (reasoning that ANSI standards which were created after
the product in question was manufactured were admissible).
Evidence concerning industry standards would assist the jury in
determining whether the powder-actuated tool distributed by Hilti was in a
defective condition and unreasonably dangerous when Michael used the tool
and safety glasses. Thus, the evidence is admissible. Accordingly, it is
ORDERED that plaintiffs’ oral motion in limine to exclude evidence of
custom, usage, and accepted industry standards for powder-actuated tools and
protective eyewear (Docket 85) is denied.
Dated November 28, 2011.
BY THE COURT:

/s/ Karen E. Schreier
KAREN E. SCHREIER
CHIEF JUDGE

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