Appeal from the United States District Court for the Southern District of Illinois. No. 92 C 699 William L. Beatty, Judge.
Before CUDAHY, COFFEY, and FLAUM, Circuit Judges.
Mr. Birchler was injured in an accident involving the Gehlbale 1500, a hay baler manufactured by the Gehl Company. Mr. Birchler and his wife sued Gehl for damages resulting from the accident. During the trial the Birchlers requested a jury instruction on a continuing duty to warn, alleging that Gehl became aware of the hazards of the Gehlbale 1500 between the time of their purchase and the time of the accident. The request was denied and the jury found no negligence on the part of Gehl. The Birchlers appeal the failure of the District Court to provide their requested jury instruction. We affirm.
Mr. Birchler bought a Gehlbale 1500A in June 1977. The Gehlbale 1500A is a hay baler which was manufactured by the Gehl Company. Mr. Birchler was seriously injured in an accident which occurred while he was working with his Gehlbale 1500A on August 12, 1990. The accident occurred when Mr. Birchler was feeding scraps of hay into the baler by hand. He alleges that the accident resulted from the fact that the baler takes in hay faster than the operator can release it.
Mr. Birchler and his wife sued Gehl under multiple negligence theories. One of the Birchlers' theories was that Gehl breached a continuing duty to warn the Birchlers of any hazards of which Gehl became aware after the manufacture and sale of the baler. The Birchlers claimed that Gehl knew about three other accidents similar to Mr. Birchler's and that Gehl was obligated to warn them of the supposed risk of injury.
The case was tried before a jury from June 5 to June 15, 1995. During the trial the Birchlers requested and were denied a jury instruction on continuing duty to warn. The jury returned a verdict in favor of Gehl. The District Court denied the Birchlers' subsequent motion for a new trial based on the denial of the instruction. The Birchlers appeal these rulings. Gehl has moved to dismiss the appeal for lack of compliance with Rule 10 of the Federal Rules of Appellate Procedure.
First we must address Gehl's motion to dismiss the appeal. Gehl claims that the Birchlers violated Rules 10(b)(1) and 10(b)(3) of the Federal Rules of Appellate Procedure. Rule 10(b)(1) requires an appellant to order for inclusion in the Record on Appeal any transcripts of the District Court proceedings necessary for a meaningful review by the Appellate Court. Fed. R. App. P. 10(b)(1). Rule 10(b)(3) requires an appellant who has not filed a complete transcript of the trial pursuant to Rule 10(b)(1) to file a statement of the issues the appellant intends to present on appeal and to serve it on the appellee. Fed. R. App. P. 10(b)(3). Further, we have held that "an appellate court has no alternative but to dismiss an appeal if the absence of the transcript precludes meaningful review. Fisher v. Krajewski, 873 F.2d 1057, 1061 (7th Cir. 1989). We find in this case that the Birchlers failed to comply with Rules 10(b)(1) and 10(b)(3) of the Federal Rules of Appellate Procedure, but that we are not precluded from meaningful review by their failure and may decide their appeal on its merits.
Although the Birchlers claim that they attempted to comply with Rule 10(b)(1) by ordering "the complete transcripts of the Record on Appeal," Appellant's Response to Appellee's Motion to Dismiss at 1, we do not know what they mean by this. Rule 10(b)(1) requires that a transcript of the trial be ordered for inclusion in the Record on Appeal. Regardless of what the Birchlers meant by their statement, it is uncontroverted that the full transcript was not included in the Record on Appeal. In fact, only the testimony of Mr. Birchler's treating physician, one expert witness and a portion of Mr. Birchler's own testimony was included in the Record on Appeal. Clearly the Birchlers did not fully comply with Rule 10(b)(1).
The Birchlers did, however, have the alternative of complying with Rule 10(b)(3). Unfortunately, the Birchlers neither filed a statement of the issues they intended to raise on appeal, nor did they serve Gehl with such a statement. This process would have given Gehl notice that the Birchlers were filing a partial transcript and would have enabled Gehl to order any additional transcripts it felt were necessary to dispute the issues being appealed. While the Birchlers claimed that the appellee had a duty to file and serve additional parts of the transcript that would be necessary, this is an erroneous reading of Rule 10(b)(3). Rule 10(b)(3) requires ...