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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Albert Bierria v. Dickinson Manufacturing Co. (11/23/2001) sp-5505

Albert Bierria v. Dickinson Manufacturing Co. (11/23/2001) sp-5505

     Notice:  This opinion is subject to correction before publication in
the Pacific Reporter.  Readers are requested to bring errors to the attention of the
Clerk of the Appellate Courts, 303 K Street, Anchorage, Alaska 99501, phone (907)
264-0608, fax (907) 264-0878, e-mail


ALBERT BIERRIA, as former     )
owner of the F/V IVANOFF II,  )    Supreme Court Nos. S-9489/9509
          Appellant and       )
          Cross-Appellee,     )
                              )    Superior Court No.
     v.                       )    3HO-97-45 CI
CO., LTD., a foreign company, )
and DICKINSON USA, INC., a    )    O P I N I O N
Washington corporation,       )
          Appellees and       )    [No. 5505 - November 23, 2001]
          Cross-Appellants.   )

          Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Homer, Harold M. Brown, Judge.

          Appearances:  Matthew W. Claman, Claman Law
Firm, Anchorage, for Appellant and Cross-Appellee.  Joanne Thomas
Blackburn, Gary D. Swearingen, Garvey, Schubert & Barer, Seattle,
Washington, for Appellees and Cross-Appellants.

          Before:  Fabe, Chief Justice, Matthews,
          Eastaugh, and Bryner, Justices.  [Carpeneti,
Justice, not participating.]

          MATTHEWS, Justice.

           Albert Bierria sued Dickinson Manufacturing after his
fishing boat caught on fire and sank, alleging that the fire had
been caused by a design defect in the boat's Dickinson stove.  The
jury concluded that the stove was defective but, despite Bierria's
testimony that he had properly installed and maintained the stove,
also concluded that the defect had not existed when the stove left
Dickinson's possession.  On appeal, Bierria argues that the jury's
verdict was unsupported by the evidence, given his allegedly
uncontroverted testimony that he had properly installed and
maintained the stove.  Bierria also appeals the trial judge's
decision to exclude testimony about certain other boat fires
involving Dickinson stoves, and to admit evidence about tests
conducted on a Dickinson stove in an on-shore warehouse rather than
aboard a seagoing vessel.  We affirm. [Fn. 1]
          Albert Bierria owned and operated the F/V Ivanoff II as a
salmon seiner.  In 1990 he purchased a Dickinson stove for the
Ivanoff II.  Bierria installed the stove himself and constantly
changed parts on the stove while he owned it.  After installing the
stove, Bierria replaced the stove's gravity flow fuel system with
an impulse pump, which he connected to the main fuel line with
rubber tubing.  
          In 1996 the Ivanoff II caught on fire and sank.  Bierria
sued Dickinson Manufacturing ("Dickinson"), claiming that the fire
had been caused by a defect in the Dickinson stove that he had
purchased and installed six years before.  Over Bierria's
objection, the trial judge, Superior Court Judge Harold M. Brown,
excluded evidence about certain other boat fires involving
Dickinson stoves on the ground that the other fires were not
substantially similar to the fire aboard the Ivanoff II, but
admitted evidence about tests of the Dickinson stove conducted by
the defendant's expert, Dr. Paul Blotter, despite the fact that the
tests were not conducted onboard a seagoing vessel.  
          The special verdict form submitted to the jury instructed
them that if they found that the fire aboard the Ivanoff II began at
the stove, they were still required to answer three more questions
affirmatively before Dickinson could be found liable: 
          (2) Was the product made by the defendant
          (3) Was the product defective when it left the
possession of the defendant?; 
          (4) Was a defect in the product a legal cause
of harm to the plaintiff?[ [Fn. 2]]  

The jury answered "yes"to Question 2 but "no"to Question 3 (and so
did not reach Question 4), resulting in a verdict against Bierria. 

          Bierria requested a new trial, arguing that there was no
evidence supporting the jury's verdict that the stove was not
defective when it left Dickinson's possession.  The trial judge
denied Bierria's motion.  Bierria appeals the denial of his motion
for a new trial, and also appeals the trial judge's disputed
evidentiary decisions.
          Authority to grant or deny a new trial rests within the
discretion of the trial court. [Fn. 3]  This court will review the
refusal to grant a new trial under an abuse of discretion standard,
and will review the record in the light most favorable to the non-
moving party. [Fn. 4]  This court will not interfere with the trial
court's exercise of discretion except in the most exceptional
circumstances to prevent a miscarriage of justice. [Fn. 5]  "An
abuse of discretion exists when 'evidence to support the verdict
was completely lacking or was so slight and unconvincing as to make
the verdict plainly unreasonable and unjust.' "[Fn. 6]  
          The standard of review for the superior court's
evidentiary rulings is abuse of discretion. [Fn. 7]  
     A.   Did the Trial Court Err in Rejecting Bierria's Motion for
a New Trial?
          As neither Bierria nor Dickinson argues that some third
party should be held responsible for the defect in the stove, the
jury's verdict that the stove was defective apparently compels one
of two conclusions:  either Dickinson was responsible for the
defect, or Bierria was.  Bierria contends that because Dickinson --
allegedly -- did not controvert his testimony that he had properly
installed and maintained the stove, there was no evidentiary basis
for the jury's implicit conclusion that Bierria, rather than
Dickinson, was responsible for the defect in the stove.  Dickinson
argues that Bierria's testimony that he properly installed and
maintained the stove was controverted, and also argues that the
jury was in any event entitled to reject Bierria's claims. 
          As an initial matter, there was evidence in the record
that challenged Bierria's claim that he properly installed and
maintained the stove.  At trial, Bierria admitted that he ran fuel
to the stove through a rubber hose instead of through copper
tubing.  Not only did the stove's instruction manual arguably
require the use of copper tubing, [Fn. 8] the jury also heard
testimony that rubber lines are generally not appropriate for
marine use.  Given this evidence, we cannot conclude that the
jury's verdict that the defect in the stove arose after it left
Dickinson's possession, presumably because of some fault of
Bierria, was "plainly unreasonable and unjust."[Fn. 9]
     B.   Did the Trial Judge Err in His Evidentiary Rulings? 
          1.   The other boat fires
          Bierria argues that Judge Brown applied the wrong legal
standard by requiring "substantial similarity,"rather than mere
"similarity,"before admitting evidence about other boat fires
involving Dickinson stoves. [Fn. 10]  Case law both from Alaska and
from other jurisdictions, however, suggests that more important
than how the test is phrased is how it is applied. [Fn. 11] 
However phrased, the purpose of the test, like the purpose of the
Rules of Evidence, is to permit the introduction of relevant
evidence while guarding against confusion, undue delay, and unfair
prejudice. [Fn. 12]  
          During the evidentiary hearing before Judge Brown,
Bierria argued that evidence of other stove fires would help to
establish that a design defect in the Dickinson stove allowed
excess fuel to overflow the burner pot or escape from the fuel-
metering valve, thus causing the fire aboard the Ivanoff II.  For
several of the other vessel fires, however, there was no evidence
that the cause of the fire was an overflow of fuel from the burner
pot or fuel-metering valve.  The High Roller and the C Marie caught
fire when high winds caused excess draft and subsequent overheating
of the stoves, and the Shearwater caught fire when fuel escaped from
a cracked burner pot.  The fire aboard the Ivanoff II, by contrast,
occurred in "flat calm"conditions, and Bierria did not seriously
argue that the fire aboard the Ivanoff II was caused by a cracked
burner pot.  Given the dissimilarity between the causes of the
fires aboard the High Roller, C Marie, and Shearwater, and Bierria's
stated rationale for introducing evidence of other fires involving
Dickinson stoves, we cannot conclude that Judge Brown abused his
discretion by excluding evidence about these fires.
          By contrast, the fire aboard the Mad Gaffer allegedly
involved the fuel-metering valve, which Bierria argued could also
have been the cause of the fire aboard the Ivanoff II.  Evidence
about the fire aboard the Mad Gaffer was thus clearly relevant in a
way that evidence about the fires aboard the High Roller, C Marie, and
Shearwater was not. [Fn. 13]  But the trial transcript indicates that
Judge Brown was willing to allow the introduction of evidence about
the fire aboard the Mad Gaffer.  Bierria cannot base a claim of error
upon his own decision not to present testimony about that fire to
the jury.  
          The closest question is presented by Judge Brown's
decision to exclude evidence of the fire aboard the Natalia.  The
evidence presented to Judge Brown at trial about the fire aboard
the Natalia was somewhat confused, in part because Bierria's
intended witness could no longer find his more detailed preliminary
report about that accident.  Although there was some evidence that
the stove's fuel-metering valve might have been involved in the
fire aboard the Natalia, there was also evidence that the fire was
caused by the boat owner's failure to adjust the carburetor on the
boat's gravity-fed tank to account for a change in temperature and
resulting change in fuel viscosity.  Bierria used an impulse pump
rather than a gravity-fed tank to fuel his stove.   Significantly,
too, Bierria did not argue at trial or before this court that there
was relevant evidence about the fire aboard the Natalia that he
could not also introduce through testimony about the fire aboard
the Mad Gaffer.  Given the fact that Judge Brown was willing to allow
testimony about the fire aboard the Mad Gaffer, the potential for
confusion in light of the incomplete evidentiary record concerning
the Natalia, and the delay involved in calling a second marine
surveyor as a lay witness, [Fn. 14] we conclude that Judge Brown
did not abuse his discretion by excluding evidence about the fire
aboard the Natalia.
          2.   Blotter's tests 
          Bierria briefly argues that Judge Brown erred in
admitting evidence of Dr. Paul Blotter's tests on a Dickinson
stove, because Blotter conducted those tests in an on-shore
warehouse rather than on a vessel under seagoing conditions.  
          This court has previously held:
               Experimental evidence is admissible only
if the conditions of the experiment were substantially similar to
the conditions at the time of the event in issue. . . . 
[P]rinciples to guide the court in determining substantial
similarity . . . include: 1) whether the dissimilarities are likely
to distort the results of the experiment to the degree that the
evidence is not relevant; 2) whether the dissimilarities can be
adjusted for or explained so that their effect on the results can
be understood by the jury; 3) the purpose of the experiment and the
degree to which the matter under experiment is a subject of precise
science; and 4) whether the experiment would be considered valid by
persons skilled or knowledgeable in the field which the experiment
concerns.[ [Fn. 15]] 
          At trial, Bierria's counsel noted on cross-examination
that Blotter had not tested the boat under seagoing conditions,
where the vessel -- and thus the stove -- would roll and pitch. 
But the stove fire aboard the Ivanoff II occurred on a "flat calm"
day, where any rolling and pitching of the vessel would have been
minimal.  Moreover, the only purpose of Blotter's test was to
determine how hot the stove became, and how hot it made the area
around it.  In his brief to this court, Bierria does not explain
how the limited motion of the sea at the time of the fire would
have affected the heat of the stove or the heat of its
surroundings.  Without evidence that the results of Blotter's tests
were likely to be distorted by the circumstances under which they
were conducted, Judge Brown did not abuse his discretion in
admitting those tests into evidence.  
          Because there was adequate evidence supporting the jury's
verdict that Dickinson was not responsible for the defect in the
stove, and because Judge Brown did not abuse his discretion in
excluding evidence about certain other boat fires or admitting
evidence of Blotter's tests of the Dickinson stove, we AFFIRM the
lower court's decision in all respects. 


Footnote 1:

     Our decision in this case makes Dickinson's cross-appeal
regarding jury instructions moot.

Footnote 2:

     Like the special verdict form, Jury Instruction 14 instructed
the jury that Bierria could recover (on the theory that the boat
had been damaged by a defect in the Dickinson stove) only if he
established that (1) the stove was defective, (2) the stove was
defective when it left Dickinson's possession, and (3) a defect in
the stove was a legal cause of Bierria's injuries.  Bierria did not
object to Jury Instruction 14, or to the special verdict form.  

Footnote 3:

     See Kulawik v. ERA Jet Alaska, 820 P.2d 627, 639 (Alaska

Footnote 4:

     See id.

Footnote 5:

     See id.

Footnote 6:

     Id. (quoting Ahlstrom v. Cummings, 388 P.2d 261, 262 (Alaska

Footnote 7:

     See Nautilus Marine Enters., Inc. v. Valdez Fisheries Dev.
Ass'n, 943 P.2d 1201, 1203 n.3 (Alaska 1997). 

Footnote 8:

     Although the copper tubing requirement was contained within
the gravity pump section of the manual, there was testimony that
the requirement also applied to the impulse pump section that
followed immediately after.  

Footnote 9:

     Kulawik, 820 P.2d at 639 (quoting Ahlstrom, 388 P.2d at 262).

Footnote 10:

     Bierria explicitly contests the exclusion of evidence of
allegedly similar fires aboard six fishing vessels:  Joleen, High
Roller, C Marie, Shearwater, Natalia, and Mad Gaffer.  The record shows
that Judge Brown excluded testimony about the fire aboard the Joleen
because the testimony was based entirely on hearsay, however,
rather than on grounds of dissimilarity. 

Footnote 11:

     Bierria cites no case whose holding turned upon a distinction
between "similarity"and "substantial similarity"of other
occurrences.  Instead, for every case cited by Bierria in support
of his argument that admissibility requires only "similarity,"there
is a later case from the same jurisdiction that -- without
overruling earlier precedent -- describes admissibility as
requiring "substantial similarity." Compare Gumbs v. International
Harvester, Inc., 718 F.2d 88, 97 (3d Cir. 1983) (similarity); Tacke
v. Vermeer Mfg. Co., 713 P.2d 527, 532 (Mont. 1986) (similarity);
with Barker v. Deere and Co., 60 F.3d 158, 162 (3d Cir. 1995)
(substantial similarity); Kissock v. Butte Convalescent Ctr., 992
P.2d 1271, 1274 (Mont. 1999) (substantial similarity). 
Analogously, while in Johnson v. State we described the test for
admissibility as requiring only similarity between occurrences, see
636 P.2d 47, 57 (Alaska 1981), the cases cited in support of that
holding described the requirement as one of substantial similarity. 
See St. Louis S.W. Ry. Co. v. Jackson, 416 S.W.2d 273, 278 (Ark.
1967); Gilbert v. Pessin Grocery Co., 282 P.2d 148, 154-55 (Cal.
App. 1955). 

Footnote 12:

     Cf. Drabik v. Stanley-Bostitch, Inc., 997 F.2d 496, 508 (8th
Cir. 1993); see also Dura Corp. v. Harned, 703 P.2d 396, 410-11
(Alaska 1985) (balancing relevancy and considerations of delay,
confusion, and prejudice in determining admissibility of evidence
of prior or subsequent accidents).  Compare Alaska R. Evid. 402
(permitting admission of relevant evidence) with Alaska R. Evid.
403 (permitting the exclusion of relevant evidence if its probative
value is outweighed by danger of undue prejudice, undue delay, and

Footnote 13:

     See Alaska R. Evid. 401.

Footnote 14:

     The Mad Gaffer and the Natalia were examined by two different
marine surveyors.

Footnote 15:

     Beck v. State, Dep't of Transp. and Public Facilities, 837
P.2d 105, 113 (Alaska 1992) (citation omitted).