This is a products liability case with jurisdiction based on diversity of citizenship. 28 U.S.C. § 1332 (1976). A jury returned a verdict in favor of the plaintiff, Ok Nyo Rexrode, and against the defendant, American Laundry Press Company, and its successor corporation, McGraw Edison Company, in the amount of $750,000. McGraw Edison appeals the judgment entered against it.1

The plaintiff, Mrs. Rexrode, was employed by the United States in a government-operated laundry facility located at Fort Riley, Kansas. She was injured on August 17, 1977, at the Fort Riley laundry when a laundry press manufactured by the defendant's predecessor closed on her hand while she was operating it.2 The press was sold to the United States by the American Laundry Press Company on or about June 1, 1959, and was installed and continually used thereafter by the United States at its Fort Riley facility.

Mrs. Rexrode, who sustained severe injuries in the accident, brought the present action against the manufacturer of the press, and its successor company, claiming that the press was manufactured and sold in an unreasonably dangerous and defective condition.3 On appeal, the defendant presents four issues for review. We shall discuss each.

The machine used by Mrs. Rexrode was a Model 1057 PY-SP yoke press which had a main control mechanism assembly known as "A 178." The press is activated when the operator depresses two red buttons located at opposite ends of the press head. As a safety precaution, the red buttons are spaced so that two hands are required to engage the main control assembly mechanism.

Depressing both red buttons opens two pneumatic valves to permit air to fill a cylinder which in turn drives the press head downward. The operator must continuously engage both red buttons as the press head descends until the press reaches the "lock position," approximately four inches above the buck. Once the machine enters the lock mode, the press will close automatically and the operator may release the red buttons.4 Activating either one of two green buttons, also located on the press head, will cause the head to ascend immediately.

Mrs. Rexrode alleged in this case that the press head descended on her hand even though she had not activated the two red operating buttons which normally must be depressed before the head will move toward the buck.

In order to ascertain whether other cases existed in which plaintiffs were injured when a press head descended mysteriously, the plaintiff propounded interrogatories to the defendant requesting information regarding past and present injury claims filed against the defendant involving laundry presses with "the same or similar main control mechanism assembly" as the press which was the subject of the suit.5 The defendant initially responded to these interrogatories by stating that it was unaware of any suits or claims involving "the model press which is the subject matter of this law suit." Dissatisfied with that answer, plaintiff filed a motion to compel answers, which was granted on July 30, 1979. The defendant then filed a supplemental answer in which it stated that there were two such cases. A second supplemental answer listed an additional eleven cases in which persons had been injured by a laundry press with the same or similar main control mechanism assembly. A third supplemental answer listed one additional suit, bringing the total to fourteen lawsuits involving claims against the defendant which were possibly similar to plaintiff's claim.

On January 16, 1980, the plaintiff filed a notice to take the deposition and request for production of documents of George Schmidlin, an attorney employed by the defendant. A hearing for protective order in response to this notice was held on February 6, 1980. The court at that time ordered the defendant to produce all files of claims, exclusive of privileged communications, involving Ajax Press Machine Company presses which used a system of depressing two press head buttons simultaneously and an A-178 or A-2206 main control mechanism assembly. Accordingly, the defendant was required to produce answers to interrogatories from the 1977 case of Miles v. American Laundry Machinery Industries, a case which was discovered in the files which Mr. Schmidlin brought to the February 12, 1980, deposition. Interrogatory 16 of the Miles case requested that the defendant list all prior suits or claims for damages filed against the defendant alleging injuries occasioned by similar products. The answer listed seventeen cases, only two of which had been identified previously in the defendant's supplemental answers to the plaintiff's interrogatories.7

On the first day of trial, the defendant filed a motion in limine seeking the exclusion of evidence relating to other claims and lawsuits against the defendant.8 The defendant argued that testimony regarding additional press accidents should not be admitted at all, unless and until the plaintiff demonstrated that the other accidents were sufficiently similar to the one at bar to be relevant.9 The court ruled that no other press accident cases would be allowed into evidence unless proof of the circumstances involved could be established by direct testimony of a witness with first-hand knowledge of the case, and unless relevancy was established by evidence that the other accident involved substantially the same circumstance as the present case.10

At trial, plaintiff's counsel was able to reveal to the jury the existence of several other press injury cases filed against the defendant by asking defense expert witnesses who had investigated some of the accidents whether they had worked on any of the cases which he would list orally by the caption name. Frequently, the witness had investigated some of the cases named, in which event counsel pursued the matter in an effort to demonstrate that the "other accidents" were comparable to the one sustained by the plaintiff. Where the witness stated that he had nothing to do with the investigation of a particular claim, however, counsel did not pursue the matter in any detail. Defense counsel interposed certain objections during this cross-examination, some of which were sustained. The objections which were overruled did not relate to matters of great import, and, to us, this particular line of cross-examination played a minor role in the trial. As illustrative of this, counsel for plaintiff in his closing argument to the jury made no mention of any other accident.

On appeal, counsel for the defendant, who did not participate in the trial, attempts to make much of the cross-examination of defendant's expert witnesses regarding other accidents, and, indeed, urges the matter as his first and primary ground for reversal. Specifically, counsel asserts that the trial court erred by failing to require plaintiff's counsel to lay the necessary foundation outside the presence of the jury before he made reference to other claims made against the defendant.

We are not persuaded by the argument. While we agree that it might be preferable to hold a hearing on the relevancy of other accidents outside of the jury's presence, we believe this approach is by no means mandated in every instance.11 We are aware that the Supreme Court of Kansas has endorsed the procedure urged by the defendant here,12 but the federal district court below was not bound by that endorsement, as the matter is one concerning procedural and not substantive law. Hanna v. Plumer, 380 U.S. 460, 85 S. Ct. 1136, 14 L. Ed. 2d 8 (1965); Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S. Ct. 817, 82 L. Ed. 1188 (1938).

Moreover, defendant's assertion that the effect of revealing names of other cases to the jury in this instance is tantamount to the error which occurred in Julander v. Ford Motor Co. is unavailing. In the Julander case, this Court reversed a lower court decision to admit into evidence complaints against the defendant, Ford, without determining whether the other steering defect claims had occurred under circumstances substantially similar to the case at issue. 488 F.2d 839, 845-47 (10th Cir. 1973). By contrast, defendant's objection here pertains to the mere mention of case names by plaintiff's counsel in front of the jury.13 This is not to say that statements by counsel can never have a prejudicial impact on a jury verdict warranting reversal, c.f. Cleveland v. Peter Kiewit Sons' Co., 624 F.2d 749, 758 (6th Cir. 1980); County of Maricopa v. Maberry, 555 F.2d 207, 217-20 (9th Cir. 1977); O'Rear v. Fruehauf Corp., 554 F.2d 1304, 1309 (5th Cir. 1977); however, it is our conclusion that this particular line of cross-examination played a minor role in the course of trial. Thus any error which occurred was harmless.

At trial, plaintiff introduced evidence, without objection, of a 1941 safety standard relating to laundry presses established by the American National Standards Institute (ANSI)14 and of a 1972 federal regulation proposed by OSHA.15 All parties agreed that the Rexrode press violated the 1941 ANSI standard and the OSHA regulation with regard to protection for nonoperators. Moreover, expert witnesses for the defendant conceded on cross-examination that had the press complied with the 1941 standard, Mrs. Rexrode would not have been severely injured.

Defendant contends that the 1941 industry standard, which was in effect at the time the press was manufactured in 1959, established safety standards beyond the state of the art of the industry at that time. Defendant in turn sought to introduce evidence of a less stringent 1972 ANSI standard, arguing that the press fully complied with its more technically feasible requirements.16 The trial court on several occasions refused to admit the 1972 ANSI standard or to permit testimony regarding it. Defendant argues failure to admit the ANSI standard constituted reversible error.17

Defendant does not challenge either the admission of the 1972 OSHA standard or the 1941 ANSI standard.18 It claims, however, that it should have been permitted to introduce a 1972 ANSI standard to prove that "the machine was in full compliance with the more recent standards, and to demonstrate that the earlier standards were an inaccurate reflection of the state of the industry." We disagree.

First, the issue of manufacturer compliance with industry standards is generally considered to be irrelevant in a strict liability case. Rather, it relates to the question of the manufacturer's duty of care under a negligence theory. See Raney v. Honeywell, Inc., 540 F.2d 932, 937-38 (8th Cir. 1976). In the main, the cases here relied on by the defendant involve claims based on negligence, rather than strict liability. See, e.g., Stonehocker v. General Motors Corp., 587 F.2d 151, 157 (4th Cir. 1978); Garst v. General Motors Corp., 207 Kan. 2, 484 P.2d 47, 61 (1971).19 Jones v. Hittle Service, Inc., 219 Kan. 627, 549 P.2d 1383, 1389-90 (1976), relied on by the defendant, holds that evidence of compliance by a defendant with a state regulation, which was stipulated to by the parties, does not conclusively prove that such defendant was not negligent or that the propane gas there involved was not defective. Garst v. General Motors Corp., supra, cited with approval in Jones, indicates that compliance with an industry practice tends to negate an allegation of negligence.

The second prong of defendant's argument for admitting the 1972 ANSI standard relates to feasibility, a factor which we would agree is extremely relevant in a design defect determination. Manufacturers are not to be held strictly liable for failure to design safety features, if the technology to do so is unavailable at the time the product is made. See generally 96 A.L.R. 3d 22, 35-40 (1980).

The difficulty with defendant's argument here lies with the fact that in 1972 OSHA also proposed standards which mandated the same protection as the 1941 standard. Moreover, in response to this OSHA proposal, defendant manufactured and marketed a safety device, the cable kit, which when installed would bring existing presses in compliance with the Act. Given that the plaintiff offered into evidence and proved the existence of the 1972 OSHA standard and the cable kit, which was marketed by the defendant, defendant's proffer of the 1972 ANSI standard to establish that in 1972 certain safety measures were infeasible was untenable.20 Similarly, any relevance which the 1972 ANSI standard might have had to prove the technological infeasibility within the industry to comply with the 1941 ANSI standard in 1959 was at best remote. Indeed, at trial the court sustained an objection by the defendant to the introduction of a 1961 ANSI standard as irrelevant "post-sale" evidence. (T.R. 160). In our opinion, the trial judge properly excluded the 1972 ANSI standard under Rule 403 of the Federal Rules of Evidence, as it was of limited relevance and likely to confuse the jury. See Rigby v. Beech Aircraft Co., 548 F.2d 288, 293 (10th Cir. 1977).

Defendant also appeals Jury Instruction No. 24 in which the court stated that plaintiff's life expectancy as of the date of the accident was 29.2 years. The judge indicated that the figure was given for the purpose of assisting the jurors in the computation of future damages and losses. Defendant complains that this instruction directed the jury to compute plaintiff's future losses and damages from the date of accident rather than from the date of trial, thus allowing double recovery for the interim between accident and trial. We disagree.

The instructions should be read together, as a whole, in determining whether a party was prejudiced by them. The trial court properly instructed the jury to compute separately damages for pain and suffering, medical expenses, and loss of income accrued, and future damages. In light of such instructions, we assume that the jury recognized the distinction between damage already incurred, and future damage, and, in connection with the latter, adjusted downward the life expectancy figure so as to give effect to the fact that there was a three-year interval between the date of accident and the date of trial. At least we are unwilling to assume the contrary. Rasmussen Drilling, Inc. v. Kerr-McGee Nuclear Corp., 571 F.2d 1144, 1149 (10th Cir. 1978).

Defendant's final contention is that the evidence is legally insufficient to support the verdict. Counsel asserts that plaintiff's evidence only established that she suffered a hand injury when, for some inexplicable reason, the press head descended. In our view, the plaintiff's evidence showed much more than just that. The plaintiff offered expert testimony to establish a design defect under several different theories, including, failure to install a so-called cable kit, or perimeter wire, which would cause the press head to rise if it contacted a part of an arm or a hand.21 Defendant's experts conceded that Mrs. Rexrode would not have been injured if the press had been equipped with a safety cable kit.

Plaintiff also introduced evidence tending to prove that defendant failed to include adequate maintenance instructions and warnings with the press when it was shipped to Fort Riley in 1959 for installation. Defendant presented evidence that the Humpfrey valve, upon which the cable kit design was predicated, was not developed until the 1960's. However, the jury was instructed to consider feasibility and the "state of the art" for the industry at the time the press was manufactured. The mere fact of continuous use of a product without injury is not, by itself, conclusive evidence that the product was not defective. Sterner AERO AB v. Page Airmotive, Inc., 499 F.2d 709 (10th Cir. 1974). In short, in considering the evidence in a light most favorable to the plaintiff, drawing all reasonable inferences and resolving all factual conflicts in accord with support for the verdict, Gardner v. General Motors Corp., 507 F.2d 525, 527 (10th Cir. 1974), it cannot be said that plaintiff failed to advance evidence sufficient to require submission of the matter to the jury. The evidence supports the verdict.

Judgment affirmed.