Rose Maree Jones v. Aero/chem Corp. And Athea Laboratories, Inc.

dissenting:

I respectfully dissent. A full jury trial has been conducted in this case. After what were presumably careful deliberations, the jury returned a finding of “no defect” in the Curb 20. To challenge this verdict, and request a new trial, plaintiff should be required to make some showing beyond mere rhetoric. I agree with the majority that under Rule 60(b)(3), and hence Rule 59, the plaintiff must (1) prove by clear and convincing evidence that the verdict was obtained through fraud, misrepresentation, or other misconduct, and (2) establish that the misconduct prevented the plaintiff from fully and fairly presenting her case. However, I am not convinced that plaintiff has demonstrated the ability to do either.

I. Clear and Convincing Evidence of Misconduct

Plaintiff must establish misconduct by clear and convincing evidence. To be entitled to a hearing on the issue, plaintiff must at least make some preliminary showing, which, if believed, would show her ability to demonstrate misconduct.

Plaintiff does not appear to have made such a showing with respect to defendant’s failure to produce Smith’s letters. Despite the majority’s reading of Anderson v. Cryovac, Inc., 862…

921 F.2d 875 Rose Maree JONES, Plaintiff-Appellant, v. AERO/CHEM CORP. and Athea Laboratories, Inc., Defendants-Appellees. No. 88-4234. United States Court of Appeals, Ninth Circuit. Argued and Submitted Nov. 3, 1989. Decided Dec. 11, 1990. Alexander Blewett, III and Michael J. George, Hoyt & Blewett, Great Falls, Mont., for plaintiff-appellant. Jack L. Lewis, Francis X. Clinch, and Susan J. Rebeck, Jardine, Stephenson, Blewett & Weaver, Great Falls, Mont., for defendants-appellees. Appeal from the United States District Court for the District of Montana. Before BROWNING and FLETCHER, Circuit Judges and REED, District Judge. * PER CURIAM: 1 Appellant Rose Maree Jones, formerly a United States Customs Inspector in Montana, appeals from the denial of a motion for a new trial following an adverse jury verdict in her products liability action against Appellees Athea Laboratories and Aero/Chem Corporation (collectively "Athea"), assembler and distributor of the "Curb 20," a hand-held aerosol tear gas spraying device. 2 Jones was required to wear the Curb 20 tear gas canister in a holster on her duty belt. While Jones was inspecting a truck, a fold-up armrest fell and struck the…

Appellant Rose Maree Jones, formerly a United States Customs Inspector in Montana, appeals from the denial of a motion for a new trial following an adverse jury verdict in her products liability action against Appellees Athea Laboratories and Aero/Chem Corporation (collectively “Athea”), assembler and distributor of the “Curb 20,” a hand-held aerosol tear gas spraying device.

*877 Jones was required to wear the Curb 20 tear gas canister in a holster on her duty belt. While Jones was inspecting a truck, a fold-up armrest fell and struck the top of the Curb 20 unit, discharging the tear gas above her hip. Jones suffered a chemical burn and developed allergic dermatitis which prevented her from returning to work.

The cause went to a jury which returned a special verdict finding “no defect” in the Curb 20. Two days later, counsel for third party defendant Emson Research Company (“Emson”), manufacturer of the component valve and actuator systems, gave counsel for Jones copies of correspondence from Athea to Emson, including a March 20, 1981 letter written by Gary Smith, engineer and Vice President of Athea. Smith’s letter indicated Athea considered the actuator system “too…