At page 996 Reviewing evidence in light favorable to non-moving party60 citing cases
- Rimbert v. Eli Lilly & Co., 577 F. Supp. 2d 1174 (D.N.M. 2008).publishedCo., 2 F.3d 995, 996 (10th Cir.1993).
- Slusser v. Vantage Builders, Inc., 576 F. Supp. 2d 1207 (D.N.M. 2008).publishedCo., 2 F.3d 995, 996 (10th Cir.1993) (citation omitted).
- Fierro v. Mesa Verde Enter., Inc., 244 F. Supp. 3d 1153 (D.N.M. 2007).publishedCo., 2 F.3d 995, 996 (10th Cir. 1993) (citation omitted).
- Prunier v. Norton, 468 F. Supp. 2d 1344 (D.N.M. 2006).publishedCo., Inc., 2 F.3d 995, 996 (10th Cir.1993). *1348 The movant bears the initial burden of showing “there is an absence of evidence to support the nonmoving party’s case.” Celotex, 477 U.S. at 325 , 106 S.Ct. 2548 .
- Murphy v. Bitsoih, 320 F. Supp. 2d 1174 (D.N.M. 2004).publishedCo., 2 F.3d 995, 996 (10th Cir.1993) (citation omitted).
- Mimics, Inc. v. Vill. of Angel Fire, 277 F. Supp. 2d 1131 (D.N.M. 2003).publishedCo., 2 F.3d 995, 996 (10th Cir.1993).
- Fed. Deposit Ins. v. Schuchmann, 224 F. Supp. 2d 1332 (D.N.M. 2002).publishedUnder Rule 56(c), summary judgment is appropriate when the court, viewing the record in the light most favorable to the non-moving party, determines that “there is no genuine dispute over a material fact and the moving party is entitled to…
- United States v. McCall, 219 F. Supp. 2d 1208 (D.N.M. 2002).publishedUnder Rule 56(c), summary judgment is appropriate when the court, viewing the record in the light most favorable to the non-moving party, determines that “there is no genuine dispute over a material fact and the moving party is entitled to…
- Butler ex rel. Butler v. Rio Rancho Pub. Sch. Bd. of Educ., 245 F. Supp. 2d 1203 (D.N.M. 2002).publishedUnder Rule 56(c), summary judgment is appropriate when the court, viewing the record in the light most favorable to the non-moving party, determines that “ ‘there is no genuine dispute over a material fact and the moving party is entitled…
- Keller v. Bd. of Educ. of the City of Albuquerque, 182 F. Supp. 2d 1148 (D.N.M. 2001).publishedUnder Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment is appropriate when the Court, viewing the record in the light most favorable to the non-moving party, determines that “there is no genuine dispute over a material…
Show 47 more citing cases
- Heuser v. Johnson, 189 F. Supp. 2d 1250 (D.N.M. 2001).publishedUnder Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment is appropriate when the Court, viewing the record in the light most favorable to the non-moving party, determines that “there is no genuine dispute over a material…
- Lee v. New Mexico State Univ. Bd. of Regents, 102 F. Supp. 2d 1265 (D.N.M. 2000).publishedUnder Rule 56(c), summary judgment is appropriate when the court, viewing the record in the light most favorable to the non-moving party, determines that “there is no genuine dispute over a material fact and the moving party is entitled to…
- Yue Yu v. Brown, 92 F. Supp. 2d 1236 (D.N.M. 2000).publishedUnder Rule 56(c), summary judgment is appropriate when the Court, viewing the record in the light most favorable to the non-moving party, determines that “there is no genuine dispute over a material fact and the moving party is entitled to…
- Kerr-McGee Corp. v. Farley, 88 F. Supp. 2d 1219 (D.N.M. 2000).publishedUnder Rule 56(c), summary judgment is appropriate when the Court, viewing the record in the light most favorable to the non-moving party, determines that “there is no genuine dispute over a material fact and the moving party is entitled to…
- Cheromiah v. United States, 55 F. Supp. 2d 1295 (D.N.M. 1999).publishedUnder Rule 56(c), summary judgment is appropriate when the court, viewing the record in the.light most favorable to the non-moving party, determines that “there is no genuine dispute over a material fact and the moving party is entitled to…
- State Farm Fire & Cas. Co. v. Ruiz, 36 F. Supp. 2d 1308 (D.N.M. 1999).publishedUnder Rule 56(e), summary judgment is appropriate when the court, viewing the record in the light most favorable to the non-moving party, determines that “there is no genuine dispute over a material fact and the moving party is entitled to…
- Nat'l Labor Relations Bd. v. Pueblo of San Juan, 30 F. Supp. 2d 1348 (D.N.M. 1998).publishedUnder Rule 56(c), summary judgment is appropriate when the court, viewing the record in the light most favorable to the non-moving party, determines that “there is no genuine dispute over a material fact and the moving party is entitled to…
- Dunn v. Tutera Grp., 181 F.R.D. 653 (D. Kan. 1998).publishedCo., Inc., 2 F.3d 995, 996 (10th Cir.1993).
- Marrs v. Boles, 51 F. Supp. 2d 1127 (D. Kan. 1998).publishedCo., 2 F.3d 995, 996 (10th Cir.1993), under the substantive law and the evidentiary burden applicable to the particular claim.
- Yazzie v. Ray Vicker's Special Cars, Inc., 12 F. Supp. 2d 1230 (D.N.M. 1998).publishedUnder Rule 56(c), summary judgment is appropriate when the court, viewing the record in the light most favorable to the non-moving party, determines that “there is no genuine dispute over a material fact and the moving party is entitled to…
- Locke v. Allstate Ins. Co., 145 F.3d 1346 (10th Cir. 1998).published Co., 2 F.3d 995, 996 (10th Cir.1993) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 , 106 S.Ct. 2505 , 91 L.Ed.2d 202 (1986)).
- F.J. Joseph, Inc. v. Lida Advert., Inc., 2 F. Supp. 2d 1425 (D. Kan. 1998).publishedCo., Inc., 2 F.3d 995, 996 (10th Cir.1993), under the substantive, law and the evidentiary burden applicable to the particular claim.
- Amoco Prod. Co. v. Hugoton Energy Corp., 11 F. Supp. 2d 1270 (D. Kan. 1998).publishedCo., 2 F.3d 995, 996 (10th Cir.1993).
- Hall v. Doering, 997 F. Supp. 1445 (D. Kan. 1998).publishedCo., 2 F.3d 995, 996 (10th Cir.1993), under the substantive law and the evidentiary burden applicable to the particular claim.
- Urban ex rel. Urban v. King, 995 F. Supp. 1251 (D. Kan. 1998).publishedCo., 2 F.3d 995, 996 (10th Cir. 1993).
- Hampton v. Dillard Dep't Stores, Inc., 985 F. Supp. 1055 (D. Kan. 1997).publishedThe court reviews the evidence in a light most favorable to the nonmoving party, e.g., Thrasher v. B & B Chem., Co., Inc., 2 F.3d 995, 996 (10th Cir.1993), under the substantive law and the evidentiary burden applicable to the particular c…
- Russell Stover Candies, Inc. v. Double VV, Inc., 983 F. Supp. 1359 (D. Kan. 1997).publishedCo., Inc. 2 F.3d 995, 996 (10th Cir.1993), under the substantive law and the evidentiary burden applicable to the particular claim.
- St. Francis Reg'l Med. Ctr., Inc. v. Critical Care, Inc., 997 F. Supp. 1413 (D. Kan. 1997).publishedCo., 2 F.3d 995, 996 (10th Cir.1993), under the substantive law and the evidentiary burden applicable to the particular claim.
- Rawlins-Roa v. United Way of Wyandotte Cnty., Inc., 977 F. Supp. 1101 (D. Kan. 1997).publishedCo., Inc., 2 F.3d 995, 996 (10th Cir.1993), under the substantive law and the evidentiary burden applicable to the particular claim.
- Brandau v. State of Kan., 968 F. Supp. 1416 (D. Kan. 1997).publishedCo., Inc., 2 F.3d 995, 996 (10th Cir.1993), under the substantive law and the evidentiary burden applicable to the particular claim.
- Jackson v. Analysts Int'l Corp., 956 F. Supp. 1568 (D. Kan. 1997).publishedCo., Inc., 2 F.3d 995, 996 (10th Cir.1993), under the substantive law and the evidentiary burden applicable to the particular claim.
- Kane v. Capital Guardian Trust Co., 953 F. Supp. 1200 (D. Kan. 1997).publishedCo., 2 F.3d 995, 996 (10th Cir. 1993).
- Keller v. St. Louis-Sw. Ry. Co., 952 F. Supp. 711 (D. Kan. 1996).publishedCo., Inc., 2 F.3d 995, 996 (10th Cir.1993), under the substantive law and the evidentiary burden applicable to the particular claim.
- Thompson v. City of Albuquerque, 950 F. Supp. 1098 (D.N.M. 1996).publishedSummary judgment is appropriately granted when the court, viewing the record in the light most favorable to the non-moving party, determines that “there is no genuine dispute over a material faet and the moving party is entitled to judgmen…
- Pueblo of Santa Ana v. Kelly, 932 F. Supp. 1284 (D.N.M. 1996).publishedThrasher v. B & B Chemical Co., Inc., 2 F.3d 995, 996 (10th Cir.1993).
- Wood v. Eli Lilly & Co., 38 F.3d 510 (10th Cir. 1994).published
- Flight Concepts Ltd. P'ship v. Boeing Co., 38 F.3d 1152 (10th Cir. 1994).published
- Robin Beville v. Matthew Ednie, 74 F.3d 210 (10th Cir. 1996).published
- Valdez v. Albuquerque Pub. Schs., 875 F. Supp. 740 (D.N.M. 1994).published
- Mcdonald v. State of KS, 880 F. Supp. 1416 (D. Kan. 1995).published
- Finley v. United States, 839 F. Supp. 1484 (D. Kan. 1993).published
- Greene v. Prod. Mfg. Corp., 842 F. Supp. 1321 (D. Kan. 1993).published
- Ball v. City of Dodge City, Kan., 842 F. Supp. 473 (D. Kan. 1994).published
- Garcia-Paz v. Swift Textiles, Inc., 873 F. Supp. 547 (D. Kan. 1995).published
- Ackley v. Dep't of Corr. of Kansas, 844 F. Supp. 680 (D. Kan. 1994).published
- Sprague v. Peoples State Bank, Colby, Kan., 844 F. Supp. 662 (D. Kan. 1994).published
- Magruder v. Runyon, 844 F. Supp. 696 (D. Kan. 1994).published
- Jacobsen v. Lambers, 888 F. Supp. 1088 (D. Kan. 1995).published
- Woodmont Corp. v. Rockwood Ctr. P'ship, 852 F. Supp. 948 (D. Kan. 1994).published
- Wayman v. Amoco Oil Co., 923 F. Supp. 1322 (D. Kan. 1996).published
- Daniels v. Dillard Dep't Stores, Inc., 881 F. Supp. 505 (D. Kan. 1995).published
- Price v. Pub. Serv. Co. of Colorado, 850 F. Supp. 934 (D. Colo. 1994).published
- Ulrich v. K-Mart Corp., 858 F. Supp. 1087 (D. Kan. 1994).published
- Farris v. Century Planners, Ltd., 858 F. Supp. 150 (D. Kan. 1994).published
- Bernard v. Doskocil Companies, Inc., 861 F. Supp. 1006 (D. Kan. 1994).published
- Bernard v. Doskocil Companies, Inc., 861 F. Supp. 1017 (D. Kan. 1994).published
- Lee v. Farmers Grp., Inc., 923 F. Supp. 1391 (D. Kan. 1996).published
At page 1009 Finding evidence of defect creating jury question6 citing cases
- Richardson v. Comm'r of Soc. Sec., No. 2:18-cv-01855 (W.D. Wash. Dec. 4, 2019).Garrison v. Colvin, 759 2 F.3d 995, 1009 (9th Cir. 2014).
- McGuire v. Comm'r of Soc. Sec., No. 2:18-cv-01340 (W.D. Wash. Oct. 28, 2019).Garrison v. Colvin, 759 2 F.3d 995, 1009 (9th Cir. 2014).
- Phillips v. Comm'r of Soc. Sec., No. 3:19-cv-05069 (W.D. Wash. Oct. 11, 2019).Garrison v. Colvin, 759 2 F.3d 995, 1009 (9th Cir. 2014).
- Kuerst v. Berryhill, No. 3:18-cv-05258 (W.D. Wash. Aug. 26, 2019).Garrison v. Colvin, 759 2 F.3d 995, 1009 (9th Cir. 2014).
- Berg v. Berryhill, No. 3:18-cv-05348 (W.D. Wash. Aug. 19, 2019).Garrison v. Colvin, 759 2 F.3d 995, 1009 (9th Cir. 2014).
- Jaff v. Comm'r of Soc. Sec., No. 3:18-cv-05644 (W.D. Wash. Aug. 7, 2019).Garrison v. Colvin, 759 2 F.3d 995, 1009 (9th Cir. 2014).
At page 998 Addressing objections to expert affidavit and causation disputes4 citing casesholding that an expert affidavit presented by the plaintiff would be considered on appeal of a summary-judgment ruling because the defendant did not move to strike the affidavit from “the summary judgment consideration
- True Gentlemen's Jerky, Inc. v. 1K1V TGJ Holdings, LLC, No. 3:21-cv-04073, 2022 WL 3370792 (N.D. Cal. Aug. 16, 2022).“Rule 1 nature of the claim, but also grounds on which the claim rests.’” Zixiang Li v. Kerry, 710 2 F.3d 995, 998-99 (9th Cir. 2013) (quoting in part Bell Atl.
- Lenox MacLaren Surgical Corp. v. Medtronic, Inc., 762 F.3d 1114 (10th Cir. 2014).published(holding that an expert affidavit presented by the plaintiff would be considered on appeal of a summary-judgment ruling because the defendant did not move to strike the affidavit from “the summary judgment consideration)
- McGarry v. Bd. of Cnty. Commissioners, 175 F.3d 1193 (10th Cir. 1999).publishedCo., Inc., 2 F.3d 995, 998 (10th Cir.1993). 4 .
- Servants of the Paraclete, Inc. v. Great Am. Ins., 866 F. Supp. 1560 (D.N.M. 1994).published
At page 997 “Although the pediatrician purchased DTP vaccine from three different suppliers, the court held that a triable issue of fact was created where the pediatrician routinely kept all drug invoices, and the only invoices located for the time period in question were from the defendant.”1 citing case
- In re Dow Corning Corp., 250 B.R. 298 (Bankr. E.D. Mich. 2000).publishedCo., 2 F.3d 995, 997 (10th Cir.1993); Fought v. Hayes Wheels Int'l, Inc., 101 F.3d 1275 , 1277 (8th Cir.1996); Orth, 980 F.2d at 637 .
At page 1001 cited at this page1 citing case
- Burris v. J.P. Morgan Chase & Co., No. 2:18-cv-03012 (D. Ariz. Oct. 7, 2021).Table 1 is not properly before the Court, but even if it were, it would not change 28 the analysis—even accepting Plaintiff’s characterization of the ESI described in Table 1, there are still huge volumes of missing ESI. 1 to the litigatio…
At page 1010 cited at this page1 citing case
- Hernandez v. Kijakazi, No. 3:22-cv-01573 (S.D. Cal. Dec. 18, 2023).No. 14 at 4. 26 However, this framing is based on an outdated legal standard, as discussed further herein. 27 4 All citations, internal quotation marks, and subsequent history are omitted unless 28 1 cannot affirm “on a ground upon which […
At page 1019 cited at this page1 citing case
- Worden v. Comm'r of Soc. Sec., No. 2:24-cv-02014 (W.D. Wash. June 20, 2025).“The decision whether to remand a case for additional evidence, or simply 19 to award benefits[,] is within the discretion of the court.” Trevizo v. Berryhill, 871 F.3d 664 , 682 20 (9th Cir. 2017) (quoting Sprague v. Bowen, 812 F.2d 1226,…
At page 1020 cited at this page1 citing case
- DeVries v. Soc. Sec., No. 5:18-cv-02824 (N.D. Cal. Sept. 30, 2019).That is because “an ALJ’s failure to provide sufficiently specific 25 reasons for rejecting the testimony of a claimant or other witness does not, without more, require 26 the reviewing court to credit the testimony as true.” Treichler, 77…
v.
B & B CHEMICAL COMPANY, INC., a Florida Corporation, Defendant-Appellee
Plaintiff-appellant Patrick Thrasher appeals the district court’s grant of summary judgment in favor of defendant-appellee B & B Chemical Company, Inc. [1] Because disputed issues of material fact remain unresolved, we reverse and remand for further proceedings.
Thrasher, an American Airlines employee, was severely burned when a barrel of paint stripper erupted. The paint stripper was packaged in a fifty-five gallon drum which had been stored in direct sunlight, contrary to company policy. The drum and its valve now cannot be located.
American Airlines identified the supplier of the stripper as B & B Chemical Co., Inc. Thrasher filed a products liability action against B & B in Oklahoma state court. The action was removed, on diversity grounds, to the United States District Court for the Northern District of Oklahoma. B & B then brought a third-party action against Florida Drum Company, the alleged supplier of the barrel.
B & B and Florida Drum both moved for summary judgment, claiming that because Thrasher could not positively identify B & B as the supplier and could not demonstrate the existence of a defect which caused his injuries, there was no genuine issue of material fact. The district court agreed, granting B & B’s motion and finding Florida Drum’s motion moot. This appeal followed.
We review summary judgment decisions de novo, applying the same standards as those employed by the district court under Fed.R.Civ.P. 56(c). Russillo v. Scarborough, 935 F.2d 1167, 1170 (10th Cir.1991). Summary judgment is appropriate when, viewing the record in the light most favorable to the nonmoving party, “there is no genuine dispute over a material fact and the moving party is entitled to judgment as a matter of law.” Id.; Applied Genetics Int’l, Inc. v. First Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th Cir.1990). At the summary judgment stage, the court’s function is not to weigh the evidence and determine the truth, but to determine whether there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). The court must determine “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Id. at 251-52, 106 S.Ct. at 2511-12.
[*997] We first determine whether Thrasher’s evidence is sufficient to create a jury question on the identity of the paint stripper supplier. Because the barrel containing the chemical cannot be located, proof of the supplier must be made through circumstantial evidence. B & B and Florida Drum rely on the fact that Thrasher identified the barrel as green and white, whereas Florida Drum’s barrels are black or black and white, and the fact that American Airlines has used other brands of paint stripper.
To support his claim that the stripper was supplied by B & B, Thrasher presented the following evidence: (1) in his workers’ compensation proceeding, in an interrogatory response, American Airlines identified the chemical that injured Thrasher as “B & B 1717AMX” supplied by the B & B Chemical Company, Appellant’s App. at 152; [2] (2) in the six months that Thrasher worked with paint stripper at American Airlines, he saw only barrels stenciled with “B & B” on them, and never saw barrels labeled with any other brand name, id. at 96-97, 107, 110, 119; (3) during the six months before the accident, American Airlines ordered large quantities of B & B stripper, as evidenced by eight invoices, dated between January 30, 1989, and June 27, 1989, for a total of eighty-six barrels, id. at 183-190; (4) no invoices were produced to show that other brands of stripper were used during this period; (5) the American Airlines employee who replaced the barrel that injured Thrasher testified that it was black with a white top, although he later said that he couldn’t safely say what color the barrel was, id. at 84, 86; (6) Charles Wofter, an American Airlines employee, testified that the drum was black, id. at 147; and (7) the OSHA investigation, conducted several months after the incident, identified the injurious paint stripper as “B & B 1717AMX,” id. at 198-200.
From this evidence, a jury could reasonably find that the paint stripper that injured Mr. Thrasher was supplied by B & B Chemical Company. The fact that American Airlines has used other brands of stripper does not defeat this conclusion, as there is no evidence that any other brand was being used, or was in stock, at the time of the accident. See Appellee’s Supp.App. at 87-88.
Several cases support our conclusion that Thrasher’s evidence is sufficient to present a jury question. For example, in Chapman v. American Cyanamid Co., 861 F.2d 1515 (11th Cir.1988), a child died after being vaccinated with a DTP vaccine. Although the pediatrician purchased DTP vaccine from three different suppliers, the court held that a triable issue of fact was created where the pediatrician routinely kept all drug invoices, and the only invoices located for the time period in question were from the defendant.
In Kramer v. Weedhopper of Utah, Inc., 141 Ill.App.3d 217, 95 Ill.Dec. 631, 490 N.E.2d 104 (Ill.App.Ct.1986), a defective bolt was supplied by one of two companies. Reversing a grant of summary judgment, the appellate court held that a jury question was created by evidence that (1) one of the suppliers provided ninety percent of the seller’s bolts, and (2) the alternate supplier was used only for special orders. Because the evidence permitted an inference that the primary supplier provided the bolt, the possibility of another supplier went to the weight of plaintiffs proof. See also Louwagie v. Witco Chem. Corp., 378 N.W.2d 63 (Minn.Ct.App.1985) (When a sales representative/part owner identified one of three companies as the supplier of allegedly defective foam, his subsequent affidavit stating that he had no way of knowing which firm made the insulation created a genuine issue of fact, precluding summary judgment).
Thrasher’s evidence that the barrel was defective, although slim, also presents a jury question. In opposition to the motion for summary judgment, Thrasher presented the affidavit of an engineer who examined a barrel similar to the one which erupted, furnished by Florida Drum. Based on his examination, the expert identified a design or manufacturing defect whereby the plastic lin[*998] er and drum end cap misalign, creating a small opening through which chemicals could spray a significant distance if released under pressure. Appellant’s App. at 70.
B & B objects to this affidavit on several grounds. First, B & B argues that the expert’s opinion should not be considered because he was not endorsed as an expert on Thrasher’s witness list. Thrasher, however, submitted a motion to the court requesting leave to amend his witness list. Because the court subsequently extended all the discovery and disclosure deadlines, it is reasonable to believe that leave to amend the witness list would have been granted as well.
In any event, B & B never moved the court to strike the evidence from the summary judgment consideration. Because B & B did not move to strike the expert’s affidavit, it was part of the evidence before the district court and is properly considered on appeal. See Thomas, 719 F.2d at 344 n. 3; Sellers v. M.C. Floor Crafters, Inc., 842 F.2d 639 (2d Cir.1988) (failure to make motion to strike waives defect in affidavit supporting summary judgment motion).
B & B’s second objection is that the barrel top examined by the expert had been cut for easier shipment, and that this accounted for the misalignment of the components. This objection, however, goes to the weight of the expert’s opinion, not to the existence of a factual dispute.
Finally, the question of causation arises. It is clear that the circumstances surrounding the accident are disputed. For example, Thrasher’s supervisor, Hector La-Plante, testified that the valve looked like it had exploded, and that only part of it remained in the barrel after the accident. Id. at 18. In contrast, another American Airlines employee testified that when he cleaned up the area after the accident, the valve appeared to be completely normal. Appellant’s App. at 82. Thrasher testified that the entire valve came out of the barrel, leaving a two-inch opening. Id. at 94, 101. American Airlines engineer Mack Hay testified that storing the chemicals in sunlight caused pressure to build in the barrel, blowing out the valve. Appellee’s SuppApp. at 93. Finally, Thrasher’s expert identified an alleged defect which may have caused the stripper to spray a significant distance when released under pressure. Appellant’s App. at 70.
In Oklahoma, a manufacturer may be held liable if a product defect combines with another cause to bring about an injury. See Messler v. Simmons Gun Specialties, Inc., 687 P.2d 121, 129 (Okla.1984) (approving an instruction, in a products liability case, defining proximate cause to include a cause which combines with a concurrent cause to bring about the injury); Fields v. Volkswagen of Am., Inc., 555 P.2d 48, 57 (Okla.1976) (same).
If a causal factor is capable of combining or acting in concert with another act or omission to produce the injury, each [tor-tious] actor will be subject to liability for the harm that evolves. The same is said to be true when several causes operate to bring about a single result.
Thompson v. Presbyterian Hosp., Inc., 652 P.2d 260, 264 (Okla.1982) (footnote omitted).
Moreover, the failure to follow a manufacturer’s instructions does not per se bar recovery, but creates an issue of causation. Treadway v. Uniroyal Tire Co., 766 P.2d 938, 941 (Okla.1988). To insulate the manufacturer, the failure to heed the instructions must be the sole proximate cause of the injuries, not a concurrent cause. See Messler, 687 P.2d at 125; Kirkland v. General Motors Corp., 521 P.2d 1353, 1367 (Okla.1974).
Here, even if we assume that pressure built up in the barrel because it was improperly stored in sunlight, the alleged defect identified by Thrasher’s expert may have contributed both to the accident itself and to the extent of Thrasher’s injuries. Viewing all inferences in the nonmoving party’s favor, Thrasher’s expert identified a weakness in the barrel’s design or manufacture which would allow caustic chemicals to spray for long distances when subjected to pressure. Because there is evidence of a defect which may have, at least partially, caused Thrasher’s injuries, we hold the evidence sufficient to create a jury question.
The judgment of the United States District Court for the Northern District of Oklahoma[*999] is REVERSED and the cause REMANDED for further proceedings.
. After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed.R.App.P. 34(a); 10th Cir.R. 34.1.9. The case is therefore ordered submitted without oral argument.
. B & B argues that this interrogatory response should not be considered because it is hearsay. Because B & B did not raise this objection below it is waived; we will not entertain such an objection for the first time on appeal. See Thomas v. United States Dep’t of Energy, 719 F.2d 342, 344 n. 3 (10th Cir.1983).