Revised February 16, 2001
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
m 99-40680
_______________
RAQUEL O. RODRIGUEZ AND JOSE L. RODRIGUEZ,
Plaintiffs-Appellees.
VERSUS
RIDDELL SPORTS, INC., ET AL.,
Defendants,
RIDDELL SPORTS, INC.; RIDDELL, INC.;
AND
ALL AMERICAN SPORTS CORP.,
DOING BUSINESS AS RIDDELL/ALL AMERICAN,
Defendants-Appellants.
_________________________
Appeals from the United States District Court
for the Southern District of Texas
_________________________
February 14, 2001
Before JOLLY, JONES, and SMITH, II.
Circuit Judges. Jose and his mother sued for product
liability and bystander injury against the
JERRY E. SMITH, Circuit Judge: manufacturer of Jose’s helmet. They asserted
that a design defect in the VSR-4 helmet
Defendants, Riddell Sports, Inc. (“RSI”), manufactured by RI and reconditioned by AA
Riddell, Inc. (“RI”), and All American Sports significantly increased the chance of impact-
Corporation, doing business as Riddell/All induced brain injury such as that Jose had
American. (“AA”), appeal a judgment holding suffered.
them strictly liable for a design defect in a
football helmet worn by plaintiff Jose Defendants are separate but related
Rodriguez when he allegedly suffered a blow corporations. RI manufactures the VSR-4
causing brain injury, and finding them liable for helmet; AA is an athletic equipment recondi-
the bystander emotional distress suffered by tioner; RSI is a holding company and the
Jose’s mother, Raquel Rodriguez. Concluding parent of RI and AA. The VSR-4 helmet Jose
that the district court erred in charging the jury wore was manufactured by RI and purchased
and that, as a matter of law, no bystander by the school district before the 1994 football
claim was viable, we reverse, remand in part, season and was reconditioned by AA in early
and render in part. 1995. The helmet’s liner contained cells of an
energy-absorbing foam (“old” Rubatex 3952
I. foam) that plaintiffs claim was fabricated by RI
In 1995, Jose was a football player at Los in September 1993.
Fresnos High School. At the first football
scrimmage of the year, he played both offense Plaintiffs assert that the helmet was man-
and defense and took more than twenty hits to ufactured and purchased in 1994. They base
his helmet. After making his last tackle, which this contention on the fact that the number
witnesses described as a seemingly normal “94010677" stamped in the shell of the helmet
one, he got up, went to the huddle, and walked meant the year 1994 and that the number
or jogged off the field to the bench, where he “993” stamped in the liner meant September
first sat, then lay down in front of the bench 1993. Defendants challenge this claim, ar-
and lost consciousness. guing that the helmet may have been
manufactured as early as 1992.
Jose’s mother, Raquel, was present in the
stands during the scrimmage but did not see In 1994, RI received samples of a new en-
Jose’s last tackle, see him leave the field, or ergy-absorbing foam. It did some initial tests
see him lie down. Sometime later, she was on the foam from February to May 1994 but
told that he was lying on the ground, so she did not test the foam again until October 1995,
went down to the field and saw him when it concluded that the new foam had bet-
unconscious and foaming at the mouth. Jose ter energy-absorbing qualities and began to use
was taken to a hospital and diagnosed as it in its helmets.
having suffered a subdural hematoma, causing
permanent brain injury and a permanent Plaintiffs claim that if Jose’s helmet had
vegetative state. contained the new foam or thicker pieces of
2
the old foam, the injury would not have allegations was that RI canceled an order of
occurred. Plaintiffs’ biomechanical expert, Dr. the old foam in 1993. This occurred,
Stalnaker, testified that the new foam would however, before RI had even received samples
have reduced substantially the risk of a subdur- of the new foam.
al hematoma. Therefore, Stalnaker
characterized Jose’s helmet as defective and Plaintiffs also argued that even if Jose’s
unreasonably dangerous and, alternatively, helmet was manufactured before RI received
opined that it could have been made safer any new foam, the new foam could have been
simply by using less “comfort” foam and inserted by AA when it had Jose’s helmet from
thicker pieces of the old energy-absorbing December 1994 to May 1995 for
foam. reconditioning. Defendants denied that the
new foam was available for use at that time
In response, RI’s helmet designer stated and argued further that AA, as a mere service
that the helmet Stalnaker designed for demon- provider, had no obligation to upgrade Jose’s
stration at trial, with thicker energy-absorbing helmet.
foam, was not practical. Stalnaker’s design re-
quired removing most of the soft “comfort” In addition to the products liability claim,
foam and replacing it with hard energy- plaintiffs assert a bystander claim on the theory
absorbing foam. RI’s designer claimed players that Raquel Rodriguez witnessed the
would not wear such a helmet, because it manifestation of Jose’s injury and, under Texas
would be too uncomfortable. As to the claim law, is entitled to recover for emotional
that the new energy-absorbing foam should distress. Defendants dispute the existence of
have been used in Jose’s helmet, RI argued any such bystander claim, because Raquel
that it could not be used until testing was Rodriguez did not perceive both the accident
complete in October 1995SStwo months after and the manifestation of injury.
Jose’s injury.
After plaintiffs rested, defendants moved
Plaintiffs argued, however, that RI could for judgment as a matter of law (“j.m.l.”) for
have begun using the new foam much earlier, insufficiency of the evidence on the design de-
because RI had received its first samples of it fect claim and as to the bystander claim. After
in February 1994. RI disagreed, introducing both sides closed, the court deemed all
evidence that it had sent the sample foam back motions timely reurged.
to the supplier for the supplier to address some
concerns RI had with it. RI also presented tes- Defendants also objected to the jury charge,
timony that the producer of the new foam was arguing that the questionsSSwhich referred to
not sure initially that it could supply the new the defendants as one entitySScould allow the
foam consistently. jury to find for plaintiffs without their having
proved their case against each defendant. The
Nonetheless, plaintiffs alleged that the court denied the objection.
reason the new foam was not tested again until
October 1995 was that RI wanted to use up its After the verdict, defendants reurged their
stock of old, inferior foam. The only evidence motion for j.m.l. on the bystander claim. The
plaintiffs introduced to support these court denied all pending motions and awarded
3
Jose $9.9 million and Raquel $1.55 million. The evidence showed that AA is a separate
corporation from RI. Although both AA and
III. RI are owned by RSI, a holding company,
A. plaintiffs did not argue that defendants were
Defendants contend the court erred as a alter egos, that they were agents of each other,
matter of law in its jury charge by treating all or that the corporate veil should be pierced.
the defendants as one entity and submitting Absent proof of one of these conditions, the
questions on products liability as to parent corporate form must be respected. See Lucas
RSI. It is undisputed that defendants objected v. Tex. Indus., Inc., 696 S.W.2d 372, 374
to the charge before the case was submitted, in (Tex. 1985).
accordance with FED. R. CIV. P. 51. We re-
view errors of law de novo but reverse a Defendants argue that treating them as one
charging error only where “the charge as a entity was an error of law, because they are
whole leaves us with substantial and ineradica- separate, and that the harm of this aggregation
ble doubt whether the jury has been properly is that it allowed the jury to apply the strict lia-
guided in its deliberations.” Stine v. Marathon bility standardSSwhich applies only to
Oil Co., 976 F.2d 254, 259 (5th Cir. 1992) manufacturersSSto service provider AA and to
(citation omitted). RSI and allowed the jury to consider the hel-
met to be in the possession of the manufactur-
Question One of the charge asked: “Was erSSthus triggering a duty to upgradeSSwhen
there a design defect in the VSR-4 football it was merely at the shop of a service provider.
helmet at the time it left the possession of De-
fendants that was a producing cause of the Plaintiffs respond that defendants cannot
injury in question? (Emphasis added.) object to the combining of the defendants in
Question Four, the other question referring to the charge, because defendants invited the er-
the defendants, asked: “Did the Defendants’ ror by referring to themselves collectively. See
actions rise to a level of willful or callous and United States v. Baytank Inc., 934 F.2d 599,
reckless indifference to the safety or rights of 606 (5th Cir. 1991).2 Defendants dis
others?” (Emphasis added).1
1
(...continued)
1
In explaining Question One, the court said: It is your first task to decide whether the
defendant is liable. I am instructing you on
Question Number 1 just outright ask [sic] damagesSSon damages only so that you will
you: Look, was the helmet when it left the have guidance in the event you decide that
possession of the defendant a producing the defendant is liable and that the plaintiff
cause of the injury in question? Was there is entitled to recover money from the
something wrong with it when it left the defendant.
defendant that producedSS was the 2
Plaintiffs make a material misrepresentation to
producing cause of the injury in question? bolster their claim that no harm occurred from
combining the defendants. Plaintiffs state that
Later, in instructing the jury on damages, the court “[d]efendants’ counsel represented at trial that his
said: three clients, including Riddell Sports, jointly man-
ufactured the helmet.” The portion of the record
(continued...) (continued...)
4
agree, saying that plaintiffs take defendants’ merely having common stockholders or
comments out of context and that defense insurers would be enough to allow the
counsel said “defendant” only when referring corporate form to be disregarded. Moreover,
to a particular defendant, usually RI. plaintiffs do not address defendants’ argument
that aggregating the defendants allowed the
A thorough review of the record shows that jury to treat AA’s possession of the helmet as
defendants did not object as often as they equivalent to RI’s possession and control of
could have when plaintiffs referred to them as itSStriggering the duties and liabilities that
one entity and that defense counsel, from time apply to a manufacturer instead of those that
to time, may have been a bit sloppy in his ref- apply to a service provider.
erences to defendants.3 Nonetheless, the evi-
dence is plain that the three defendants were B.
distinct corporations. Under Texas law, a manufacturer is strictly
liable for a design defect if a product was un-
Further, it is plaintiffs’ duty to prove each reasonably dangerous when it left its control.
element of their prima facie case. Thus if Bell Helicopter Co. v. Bradshaw, 594 S.W.2d
combining two corporations into one is 519, 531 (Tex. Civ. App.SSCorpus Christi
necessary to apply a strict liability standard, 1979, writ ref’d n.r.e.); RESTATEMENT (2D) OF
then plaintiffs must prove that the corporations TORTS § 402A.
should be combined, and sloppiness on the
part of defendants does not excuse plaintiffs If the product is not unreasonably
from this burden. dangerous at the time it leaves the
manufacturer's control, the manufacturer
Plaintiffs argue, alternatively, that it was does not become strictly liable for
harmless error for the court to combine all damages if the product subsequently
three defendants, because defendants have becomes unreasonably dangerous unless
common stockholders and common insurance the manufacturer regains a significant
coverage. Thus, according to plaintiffs, it does degree of control of the product, and the
not matter which defendant is found liable, product is then determined to be
because the same insurance company will pay. unreasonably dangerous before the
manufacturer loses control of the
product.
This is not enough to disregard the
corporate form, however. Under plaintiffs’ Bell Helicopter, 594 S.W.2d at 531; Otis
theory, there would be no point in having Elevator Co. v. Bedre, 758 S.W.2d 953 at 955
separately incorporated subsidiaries, because (Tex. App.SSBeaumont 1988), aff’d in part
and rev’d in part, 776 S.W.2d 152 (Tex.
1989).4
2
(...continued)
that plaintiffs cite in support of this contains
nothing of the sort, nor could we find any such
4
representation elsewhere in the record. See also Dion v. Ford Motor Co., 804
3
Part of the confusion likely was caused by the S.W.2d 302, 311 (Tex. App.SSEastland 1991, writ
fact that AA did business as Riddell/All American. denied).
5
“We evaluate whether a product has a de- feasible because removing the comfort foam to
sign defect in light of the economic and sci- add more hard, energy-absorbing foam would
entific feasibility of safer alternatives.” make the helmet so uncomfortable that no one
Caterpillar, Inc. v. Shears, 911 S.W.2d 379, would want to wear it.
384 (Tex. 1995) (citing Boatland, Inc. v.
Bailey, 609 S.W.2d 743, 746 (Tex. 1980)). If this were the case, the jury, to reach its
“The degree of feasibility is one factor courts finding of liability, must have believed that as
weigh in balancing the utility of a product soon as RI completed its first round of tests on
versus its risks.” Id. (citing Turner v. Gen. the new foam in May 1994SSseventeen months
Motors Corp., 584 S.W.2d 844, 846, 849 before RI manufactured any helmets using the
(Tex. 1979). “However, if there are no safer new foamSSa safer alternative design had
alternatives, a product is not unreasonably become available. The jury further must have
dangerous as a matter of law.” Id. (citing believedSSbecause the jury instruction referred
Boatland, 609 S.W.2d at 748). “Texas law to all three defendants as oneSSthat when AA
does not require a manufacturer to destroy the (the reconditioner) had Jose’s helmet in May
utility of his product in order to make it safe.” 1995, it was the same as if RI (the man-
Hagans v. Oliver Mach. Co., 576 F.2d 97, 101 ufacturer) had the helmet, and therefore there
(5th Cir. 1978). was a duty to substitute the new foam that RI
had in sample form, because the new foam
Defendants contend that the jury may have constituted a safer alternative design.5
found strict liability in either of two ways, one
of which would have been based on legal er- 5
ror. On one hand, the jury may have given Plaintiffs exhaustively urged this theory to the
jury; they combined all of the defendants to argue
credence to plaintiffs’ evidence that Jose’s
on closing:
helmet was unreasonably dangerous at the
time of its design or by the time it was sold. What happens in between their receipt of
The jury may have believed Stalnaker’s the new foam in February of ‘94 and the
testimony that the helmet could have been time that they finally drop tested it? They
made safer at the time of its design in 1992 had Joe Rodriguez’ helmet in their hands.
merely by inserting more energy-absorbing They sent a representative out to Los Fres-
foam and using less comfort foam. If the jury nos High School and they said, “Let us take
reached this conclusion of fact, its verdict care of your helmets. We will take them
would be unassailable, because, by law, if a back from you.” . . .
safer alternative design existed at the time of
manufacture and sale, then the product was And what did they do? They took it back,
unreasonably dangerous. they charged Los Fresnos High School
money and they returned it to them on May
11, 1995, with the representation on a stamp
On the other hand, if the jury did not
right here, . . . that says that this is a recerti-
believe that a safer alternative existed when the fied helmet in accordance with the
helmet was sold, it must have found liability NOCSAE standards. The representation
under a legally erroneous theory. The jury that they made to the coaches at Los Fres-
may have believed defendants’ design witness, nos High School and indirectly to the
who testified that Stalnaker’s design was in- players like Joe Rodriguez and to their
(continued...)
6
This would have been error, because under RI regained a significant degree of control
Texas law a maintenance contract does not im- over the helmet when AA reconditioned it,
pose on the contractor responsibility for design thus subjecting RI to strict liability because the
defects or to upgrade a product. See Muniz v. safest available foam was not used.
Ransomes Am. Corp., 921 F. Supp. 438, 442
(S.D. Tex. 1995), aff’d, 81 F.3d 154 (5th Cir. Plaintiffs rely heavily on Bell Helicopter, in
1996). In fact, even if, hypothetically, plain- which plaintiff claimed that a helicopter had an
tiffs had made a negligence claim against AA unreasonably dangerous tail rotor blade. Al-
for not using the new foam, to maintain the though the court found that the blade was not
action the contractor must have a duty to en- unreasonably dangerous when it initially left
hance the product. AA’s contract with the Bell’s control in 1961, the court held that Bell
school specifically said that it did not have that regained “a significant degree of control” of
duty: “[AA] does not undertake to change or the helicopter when Houston Helicopters, a
modify the design, construction, material or Bell service station, acquired title to the
fitness of the athletic equipment herein listed, helicopter in 1969. Bell Helicopter, 594
it’s [sic] only obligation being to recondition S.W.2d at 530.
such equipment as herein specified.”
In 1970, Bell learned that the tail rotor
Plaintiffs disagree, arguing that RI regained blade was dangerous and began a program to
significant control over the helmet when AA replace it. The helicopter at issue, however,
took it in for reconditioning: “As the was never refitted with an improved blade;
authorized agent and sister company of Rid- Houston Helicopters sold the helicopter to the
dell, the VSR-4 helmet is deemed to have left plaintiff in 1973. The court held as a matter of
the hands of Riddell on the same day it left the law that Bell had control of the helicopter, for
hands of All American with insufficiently thick, strict liability purposes, when Houston Heli-
inferior ‘o ld’ foam.” Plaintiffs introduced no copters owned it, because of “the unique
evidence that the VSR-4 is the authorized relationship between the service stations and
agent or sister company of RI. We assume, Bell.” Id. at 531.
though, that plaintiffs meant to argue that RI
and AA have such a unique relationship that
Although Bell did not possess the actual
power of the FAA to require owners to
5
(...continued) replace the 102 system with the 117 sys-
brothers and sisters like Carmen and Diana tem, as a practical matter, it could ac-
and Juan. complish the same result through its
service stations. All of Bell service sta-
The representation was, this is the best
tions were required to adhere to and
helmet that technology can make. That’s
what they are telling the world, ladies and
comply with all Bell-issued service bul-
gentlemen, when they put this thing back on letins or safety notices regarding Bell-
the marketplace on May 11th, 1995. made component parts, the servicing of
same, or the replacement thereof. Had
And what was it really? It wasn’t even Bell demanded a replacement of the 102
the best foam that they had sitting on their system with the 117 system or delivered
shelves.
7
an adequate notice concerning the required by Bell Helicopter Company.” Id.6
unreasonably dangerous condition of the
102 system during the time the “Whether a duty exists under a given set of
helicopter remained in the possession of facts and circumstances is essentially a
Houston Helicopters, the latter would question of law for the trial court.” Id.
have complied with Bell’s directive. (citations omitted). We review questions of
law de novo. Stine v. Marathon Oil Co., 976
Id. F.2d 254, 259 (5th Cir. 1992).
Defendants contend that Bell Helicopter is Our task, therefore, is to determine whether
not determinative and that this case is more the instant facts are more similar to those in
like Dion v. Ford Motor Co., 804 S.W.2d 302 Bell Helicopter or to those in Dion. If the
(Tex. App.SSEastland 1991, writ denied), former, then as a matter of law the
which distinguished Bell Helicopter and ruled manufacturer regained a “significant degree of
that a manufacturer had not regained a control” and is strictly liable. If the latter, then
“significant degree of control” of a tractor so strict liability does not apply to the
as to subject it to strict liability. In Dion, a reconditioning of the helmet.
plaintiff sued for damages incurred when his
Model 8N tractor rolled over and crushed him;
6
he argued that the tractor was unreasonably The Dion court also relied on Otis Elevator
dangerous because it did not have a rollover Co. v. Bedre, 758 S.W.2d 953, 955 (Tex.
protection system. The court held that the App.SSBeaumont 1988), rev’d on other grounds,
776 S.W.2d 152 (Tex. 1989) (per curiam), another
tractor was not unreasonably dangerous when
case distinguishing Bell Helicopter, in which the
it was manufactured in 1950, because no court made the following factual distinction:
tractors manufactured at that time had rollover
protection systems. In this case, the Otis elevator in question
had not been sent back to an Otis
As technology improved, all Ford tractors maintenance and repair shop; nor had the
were built with rollover protection systems, elevator been placed in one of Otis’ own
and Ford began manufacturing such systems authorized service stations. Otis had not
that could be placed on the Model 8N. The regained possession or title to the elevator in
court noted that, like the plaintiff in Bell Heli- question; nor had Otis issued any direct,
copter, Dion had his tractor serviced at a ser- unequivocal orders or authorizations to
vice station authorized by the manufacturer; no replace certain parts or systems on the
one at the station told him that he should have elevator. In Bell Helicopter . . ., these
a rollover protection system installed. The compelling, paramount facts existed.
court distinguished Bell Helicopter, pointing
Furthermore, no jury finding exists that the
out that “McMaster Ford never took title to elevator in question was defective when it
the tractor, and Ford never issued any left the possession of Otis and entered into
replacement program for the 8N tractor.” Id. the stream of commerce. In fact, Otis lost
at 311. The court concluded that “Ford did control and possession of the elevator when
not regain a ‘significant degree of control’ as it was sold in 1961. Otis never regained
control or possession in the same manner as
did Bell Helicopter Company.
8
The facts of this case are more similar to in making its decision. Therefore, if a jury
those in Dion; indeed, they are almost could find liability according to multiple
identical. As in Dion, RI manufactured and theories, and one of them is erroneous, we re-
sold the product, at which point it lost control verse unless we can tell that the jury came to
of it. Then, some time later, an authorized its decision using only correct legal theories.
service provider serviced the helmet without Id. If it is impossible to tell whether a correct
ever taking title to it. Further, RI instituted no theory has been used, we reverse for a new
program to replace the old foam with the new. trial. Id.8 Such is the case here.
In fact, RI had not even begun to use the new
foam itself. C.
The court also erred as a matter of law in
Thus, as a matter of law, RI never regained allowing the case to go to the jury with regard
the “significant degree of control” required to to RSI. It is undisputed that RSI is a holding
make it strictly liable for the helmet when it company and parent of RI and AA but does
was in AA’s shop for servicing.7 If the jury not produce anything or place anything in the
found RI strictly liable for AA’s failure to stream of commerce. “Generally, a court will
improve the helmet, this was legal error. not disregard the corporate fiction and hold a
corporation liable for the obligations of its sub-
As we have said, we vacate a jury award if
the jury charge as a whole leaves substantial 8
and ineradicable doubt whether the jury has We explained in Walther, 952 F.2d at 126,
been properly guided. See Skidmore v. that
Precision Printing & Packaging, Inc., 188
[t]he Supreme court has said in the criminal
F.3d 606, 614 (5th Cir. 1999). We do not context that “a general verdict must be set
reverse where the jury instructions contain aside if the jury was instructed that it could
mere factual errors; instead, we assume the rely on any of two or more independent
jury considered all the evidence in reaching its grounds, and one of those grounds is
decision. Walther v. Lone Star Gas Co., 952 insufficient, because the verdict may have
F.2d 119, 126 (5th Cir. 1992). rested exclusively on the insufficient
ground.” Zant v. Stephens, 462 U.S. 862,
When the court erroneously instructs a jury 881 (1983); see also Neubauer v. City of
on the law, however, the jury may correctly McAllen, 766 F.2d 1567, 1575 (5th Cir.
apply the facts to the incorrect legal standard 1985). This principle has its origins in
Stromberg v. California, 283 U.S. 359
(1931), where the Court reversed a
conviction when one of three possible bases
7
Cf. Torres v. Caterpillar, Inc., 928 S.W.2d for the jury’s verdict was unconstitutional.
233, 240-42 (Tex. App.SSSan Antonio 1996, writ . . . In Griffin v. United States, 502 U.S. 46
denied) (assuming plaintiff bought a used forklift (1991), [however,] the Court explained that
from an authorized dealer, but refusing to hold that the Stromberg rule should be applied only
the fact that the dealer acquired and resold the when jurors have been left the option of
forklift without a rollover bar was enough to allow relying on a legally inadequate theory, not a
conclusion that the manufacturer had thus regained factually inadequate theory.
a “significant degree of control” to be held strictly
liable). (Parallel citations omitted.)
9
sidiary except where it appears the corporate 923, 923-24 (Tex. 1988).9 The Texas
entity of the subsidiary is being used as a sham Supreme Court, while recognizing that these
to perpetrate a fraud, to avoid liability, to “elements are flexible and should be applied on
avoid the effect of a statute, or in other ex- a case-by-case basis,” recently clarified that the
ceptional circumstances.” Lucas v. Tex. In- issue of bystander recovery becomes a
dus., Inc., 696 S.W.2d 372, 374 (Tex. 1985) question of law when the material facts are
(citing Torregrossa v. Szelc, 603 S.W.2d 803 undisputed. See U. S. Auto. Ass’n v. Keith,
(Tex. 1980)). 970 S.W.2d 540, 542 (Tex. 1998).
“There must be something more than mere In Keith, Dianna Keith arrived on the scene
unity of financial interest, ownership and con- of an automobile accident and perceived that
trol for a court to treat the subsidiary as the her daughter’s car was still smoking, and heard
alter ego of the parent and make the parent lia- the “scary noises” her daughter was making in
ble for the subsidiary’s tort.” Id. Nothing of response to her injuries. Keith remained there
this sort is even alleged, so it was an error of while the rescue crews removed her daughter
law not to dismiss RSI; we reverse and render from the car and accompanied her daughter to
judgment for that defendant. the hospital.
IV. Despite Keith’s being a witness to the pain
Raquel Rodriguez’s bystander recovery and suffering that resulted from the accident,
must be reversed as a matter of law. In Texas, the court denied the claim, stating that “Texas
bystander recovery is available if a plaintiff can law still requires the bystander’s presence
establish that when the injury occurred and the
contemporaneous perception of the accident.”
(1) The plaintiff was located near the Id. Where a plaintiff does not meet these
scene of the accident, as contrasted with requirements, even where the observance of
one who was a distance away from it; the effects of the injury creates an emotional
impact, “[she] is in the same position as any
(2) The plaintiff suffered shock as a re- other close relative who sees and experiences
sult of a direct emotional impact upon the immediate aftermath of a serious injury to
the plaintiff from a sensory and a loved one”SSrecovery is not available. Id.
contemporaneous observance of the That a parent arrives on the scene and
accident, as contrasted with learning of witnesses a child’s “pain and suffering at the
the accident from others after its site of the accident rather than at the hospital
occurrence; and or some other location does not affect the
analysis.” Id.
(3) The plaintiff and the victim were
closely related, as contrasted with an ab- Here, Raquel Rodriguez did not witness the
sence of any relationship or the presence injurySSshe did not have a contemporaneous
of only a distant relationship. perception of it. There is little doubt that see-
Freeman v. City of Pasadena, 744 S.W.2d
9
See also Edinburg Hosp. Auth. v. Trevino,
941 S.W.2d 76, 80 (Tex. 1997).
10
ing her son suffering from the effects of his ac- current law’ at the time of trial.” United
cidentSSfrothing at the mouth and spitting States v. Calverley, 37 F.3d 160, 162-63 (5th
salivaSSwas horrifying and emotionally painful. Cir. 1994) (en banc) (quoting United States v.
Emotional distress, however, must occur Olano, 507 U.S. 725, 734 (1993)). “[T]o be
under certain conditions, not met here, for a reviewable under this standard an obvious le-
parent to be entitled to bystander recovery. gal error must affect substantial rights. . . .
The court erred in allowing this question of [P]lain forfeited errors affecting substantial
law to go to the jury. rights should be corrected on appeal only if
they ‘seriously affect the fairness, integrity, or
V. public reputation of judicial proceedings.’” Id.
A. at 164 (quoting United States v. Atkinson, 297
Defendants claim the court committed plain U.S. 157, 160 (1936)).
error by repeatedly intervening in the trial to
the plaintiffs’ benefit and by encouraging the “A trial judge has wide discretion over the
jury to think of the defendants as one entity. ‘tone and tempo’ of a trial and may elicit fur-
The testimony of the expert witnesses was in ther information from a witness if he believes
sharp conflict on the issues of causation and it would benefit the jury.” United States v.
design defect. The credibility of the experts Rodriguez, 835 F.2d 1090, 1094 (5th Cir.
therefore became a crucial criterion by which 1988) (quoting United States v. Adkins, 741
the jury could determine whom to believe. F.2d 744, 747 (5th Cir. 1984)). Federal Rule
Defendants contend the court repeatedly of Evidence 614(b) allows the court to
questioned defense witnesses in such a way so “interrogate witnesses, whether called by itself
as to discredit them and show that the court or by a party.” The court “‘may question wit-
did not believe them. nesses and elicit facts not yet adduced or
clarify those previously presented.’” United
Further, defendants aver that the court’s States v. Williams, 809 F.3d 1072, 1087 (5th
references to Jose Rodriguez as a “victim” and Cir. 1987) (quoting Moore v. United States,
to defendants as “defendant” tipped the jury 598 F.2d 439, 442 (5th Cir. 1979)). “A
that the judge thought Rodriguez was a victim judge’s questions must be for the purpose of
of defendants’ product and that the defendants aiding the jury in understanding the
could be viewed as one entity, in contradiction testimony.” United States v. Saenz, 134 F.3d
of corporate law. Finally, defendants claim the 697, 702 (1998) (citing United States v. Ber-
court took charge of the questioning of one mea, 30 F.3d 1539, 1570 (5th Cir. 1994)).
defense witness and suggested an argument “However, the trial court’s efforts to move the
against defendants that plaintiffs had not come trial along may not come at the cost of ‘strict
up with on their own. impartiality.’” Id. (citing United States v.
Davis, 752 F.2d 963, 974 (5th Cir. 1985)).
Defendants did not object at trial to the
court’s interventions, so a plain error standard “In reviewing a claim that the trial court ap-
applies. See United States v. Gray, 105 F.3d peared partial, this court must ‘determine
956, 964 (5th Cir. 1997). Plain error is whether the judge’s behavior was so
“‘clear’ or ‘obvious,’ and, ‘[a]t a minimum,’ prejudicial that it denied the [defendant] a fair,
contemplates an error which was ‘clear under as opposed to a perfect, trial.’” Id. (quoting
11
Williams, 809 F.2d at 1086 (quoting United witnesses.10
States v. Pisani, 773 F.2d 397, 402 (2d Cir.
1985))). “To rise to the level of constitutional We do note, however, that some of the
error, the district judge’s actions, viewed as a court’s comments could have been interpreted
whole, must amount to an intervention that by the jury as an indication of the court’s pre-
could have led the jury to a predisposition of ference for plaintiffs over defendants. We de-
guilt by improperly confusing the functions of cline to indicate whether, had defendants ob-
judge and prosecutor.” Bermea, 30 F.3d at jected, we would reverse on this additional
1569; see also United States v. Mizell, 88 F.3d ground. The court is reminded that, on
288, 296 (5th Cir. 1996). remand, it must be careful not to use its
extensive authority over the proceedings to
“Our review of the trial court’s actions prejudice the result.
must be based on the entire trial record.”
Saenz, 134 F.3d at 702 (citing United States v. We are troubled, in addition, by the court’s
Carpenter, 776 F.2d 1291, 1294 (5th Cir. questioning of a defense expert who estimated
1985)). “A trial judge’s comments or that the speed at which Rodriguez hit the
questions are placed in the proper context by ground was one-half the speed that plaintiffs’
viewing the ‘totality of the circumstances, expert had estimated. The court took control
considering factors such as the context of the of the questioning and suggested that the de-
remark, the person to whom it is directed, and fense witness should agree with him that, if the
the presence of curative instructions.’” Id. injury occurred on that play, and if Rodriguez
(quoting United States v. Lance, 853 F.2d fell more slowly than plaintiffs say he did, it
1182) (5th Cir. 1988). “The totality of the cir- must mean that the helmet was even more de-
cumstances must show that the trial judge’s in- fective than previously thought, because it did
tervention was ‘quantitatively and qualitatively not protect Rodriguez at the slower speed.
substantial.’” Id. (quoting Bermea, 30 F.3d at The court then opined that because of this, he
1569).
Evidently the district court did not 10
The court instructed:
appreciate that by effectively consolidating the
defendants, it allowed the jury to return a If I did not tell you when we began this
verdict when the plaintiffs had not proven each case, I sure mean to tell you now. I didn’t
element of their case; we have already dealt have an opinion then. I still don’t.
with this error by reversing and remanding.
The remainder of the court’s actions did not And although I asked questions, I asked
amount to prejudicial conduct that meets the you when we started this case to be very
mindful of the fact that you were not to give
plain error standard applicable here. Although
them any less or more importance because I
the court often intervened, our thorough asked them. It is not my intention and never
review of the record does not reveal was it my intention to invade what is
systematic bias rising to the plain error exclusively your province.
standard. Furthermore, the court specifically
instructed the jury that it should give no So if I did anything to lead you to believe
special weight to any questions it asked of the that I had an opinion about the case, please
disregard it. That was not my intention.
12
thought defendants instead should be arguing Defendants reason that this intervention
that the speed was higher.11 was an attempt to help the plaintiffs by
undercutting defendants’ theory of the case.
We agree that, at best, the comments violated
11
The relevant portion of the transcript states: the stricture that a court should not comment
on trial strategy. Moore v. United States, 598
The Court: But let us assume for the sake F.2d 439, 445 (5th Cir. 1979). The court
of speaking, if you can from an engineering should keep this in mind on remand.
standpoint, we understand you have to con-
fine yourself to that, that there is no
B.
preexisting injury and this was as a result of
Defendants contend the court improperly
something that was wrong with the helmet,
itself, shouldn’t the ones who are claiming
allowed Stalnaker’s expert testimony without
would want him to come down slower and fulfilling the gatekeeping role required by Dau-
the ones against whom the claims are made bert v. Merrill Dow Pharmaceuticals, Inc.,
want him to be coming down faster? 509 U.S. 579 (1993). Daubert, in conjunction
with Federal Rule of Evidence 702, “imposes
*** a special obligation upon a trial judge to
ensure that any and all scientific testimony . .
The Court: Wouldn’t you then expect . is not only relevant, but reliable.’” Kumho
defendants to want him to go down faster Tire Co. v. Carmichael, 526 U.S. 137, 147
and plaintiffs to want him to go down (1999) (quoting Daubert, 509 U.S. at 589).
slower? This obligation pertains not only to scientific
evidence but to “all expert testimony.” Id.
The Witness: I see what you are saying.
To trigger a Daubert inquiry, an expert’s
The Court: To show that, for example, the
item did not serve its purpose even at a testimony, or its “factual basis, data,
slower impact? principles, methods, or their application,” must
be “called sufficiently into question.” Id. at
*** 149; see Tanner v. Westbrook, 174 F.3d 542,
546 (5th Cir. 1999). Defendants moved to
The Court: For example, ifSSand that is not exclude Stalnaker, challenging the basis for his
for us to determine, and I am not opinion and including an affidavit from one of
presupposing thatSSthere is something their experts that disagreed with the testimony.
wrong with this helmet, that there is more
wrong with it if he went down more slowly? Because we are remanding, we do not in-
quire whether the court abused its discretion in
The Witness: If you start out with that admitting Stalnaker’s testimony, but we note
premise, I would agree with you.
that under Tanner, id. at 545, the court must
articulate its basis for admitting expert
***
testimony and that the proponent of expert tes-
The Court: So for us lay persons, why is
one side wanting it to be faster and the other
11
one wanting it to be slower? Do you know? (...continued)
(continued...)
13
timony “must prove by a preponderance of the record discloses its improper or unreasonable
evidence that the testimony is reliable.” Id. at exercise.” Abuse of discretion has been found,
547. however, only in instances in which a court re-
fused to grant more than three strikesSSeither
C. because it was unaware of its ability to do so
Defendants complain that the court granted or because it did not correctly perceive the
each side seven peremptory strikes instead of harm done to one or more parties who could
the usual three and that this allowed plaintiffs not agree on strikes. See, e.g., John Long
to “remove all or virtually all of one part of the Trucking, Inc. v. Greear, 421 F.2d 125, 128
population (the educated sector, the middle- (10th Cir. 1970). In the absence of either stat-
class, and the upper middle-class).” Defen- utory language regarding the proper exercise
dants do not in any way support their as- of judicial discretion in granting additional jury
sertion, nor do they explain how the plaintiffs strikes or caselaw stating that granting ad-
were able to control the makeup of the jury ditional strikes to multiple parties with fully
when defendants had an equal number of aligned interest is improper, we cannot find an
strikes and therefore could have struck abuse of discretion here.
members of other perceived sectors of the
population, assuming such persons were in the The judgment is REVERSED, and
venire. judgment is RENDERED in favor of
defendant RSI. This matter is REMANDED
The record shows that the court gave extra for further proceedings consistent with this
strikes because there were many more opinion.
potential juro rs available at that time than
there were trials. Title 28 U.S.C. § 1870
allows a court complete discretion in
apportioning additional peremptory challenges
on the basis of multiple parties on either or
both sides of a suit. Although caselaw from
this and other circuits demonstrates that
additional strikes usually are granted when
multiple parties on the same side of a suit are
antagonistic in some respects and, therefore,
may not share the same strategy for striking
potential jurors, there is no definite rationale in
the rules that specifies the circumstances under
which a court may grant more than three
strikes.
Defendants cite Globe Indemnity Co. v.
Stringer, 190 F.2d 1017, 1018 (5th Cir. 1951),
which characterizes the discretion given under
28 U.S.C. § 1870 as not “arbitrary or
unreasonable,” but “reviewable where the
14