FILED
NOT FOR PUBLICATION
SEP 10 2019
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DAVID MICHERY, No. 17-56844
Plaintiff-Appellant, D.C. No.
2:12-cv-04957-RSWL-FFM
v.
FORD MOTOR COMPANY, a Delaware MEMORANDUM*
corporation,
Defendant-Appellee.
Appeal from the United States District Court
for the Central District of California
Ronald S.W. Lew, District Judge, Presiding
Argued and Submitted April 8, 2019
Pasadena, California
Before: RAWLINSON and MURGUIA, Circuit Judges, and RAKOFF,** District
Judge.
Appellant David Michery (Michery), who was severely injured during an
accident while driving a 1999 Ford Expedition manufactured by Appellee Ford
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Jed S. Rakoff, United States District Judge for the
Southern District of New York, sitting by designation.
Motor Company (Ford), appeals the district court’s judgment entered in favor of
Ford after a jury trial. Michery alleged that his injuries resulted from a design
defect in the Ford Expedition’s front bumper.
1. A new trial is not warranted based on the district court’s decision not
to instruct the jury on comparative fault after Ford withdrew its affirmative
defense. Under California law, Ford properly asserted that Michery was unable to
demonstrate that his injuries were caused by a design defect. See Demara v. The
Raymond Corp., 13 Cal. App. 5th 545, 553 (2017) (explaining that “the plaintiff
must prove that the design was a substantial factor in causing an injury”) (citations
omitted). Michery is also unable to demonstrate the requisite prejudice. See
Dunlap v. Liberty Nat. Prods., Inc., 878 F.3d 794, 798 (9th Cir. 2017) (articulating
that instructional error is harmless “[w]here it is more probable than not that the
jury would have reached the same verdict had it been properly instructed”)
(citation and internal quotation marks omitted). The jury never reached the issue
of causation, instead rendering its verdict in favor of Ford based exclusively on the
risk-benefit design test—an entirely independent basis for determining that Ford
was not liable. See Demara, 13 Cal. App. 5th at 562 (applying risk-benefit test
under California law).
2
2. The district court properly excluded under Rule 407 of the Federal
Rules of Evidence (Rule 407)1 design improvements to other vehicles several years
after the manufacture of the 1999 Ford Expedition. Ford’s expert acknowledged
that reinforcement of the Expedition’s front bumper was feasible, but challenged
the utility of Michery’s proposed design, thus precluding evidence of subsequent
remedial measures. See Gauthier v. AMF, Inc., 788 F.2d 634, 637-38 (9th Cir.
1986) (explaining that, under Rule 407, “where a defendant argues about the trade-
offs involved in taking precautionary measures, it is not placing feasibility in
issue”) (citation omitted) (emphasis in the original).
Alternatively, the district court properly excluded subsequent remedial
measures implemented on vehicles manufactured several years after the 1999 Ford
Expedition as unduly prejudicial under Rule 403 of the Federal Rules of Evidence.
See McCollough v. Johnson, Rodenburg & Lauinger, LLC, 637 F.3d 939, 953 (9th
Cir. 2011) (stating that “relevant evidence must be excluded if its probative value
1
Michery failed to raise in district court his assertion that the district court
erred under Erie R. R. Co. v. Tompkins, 304 U.S. 64 (1938) in applying Rule 407 in
lieu of California’s more lenient evidentiary rules. Therefore, we decline to
address this issue on appeal. See Yamada v. Nobel Biocare Holding AG, 825 F.3d
536, 543 (9th Cir. 2016), as amended (“Generally, an appellate court will not hear
an issue raised for the first time on appeal. . . .”) (citation omitted). In any event,
we have recognized that Rule 407 is the governing procedural rule under Erie. See
Rosa v. Taser Int’l, Inc., 684 F.3d 941, 948-49 (9th Cir. 2012).
3
is substantially outweighed by the danger of unfair prejudice, confusion of the
issues, or misleading the jury”) (citation omitted).
3. The district court did not abuse its discretion in its formulation of the
verdict form. Although listing causation as the first issue to be decided by the jury
would have been more consistent with California’s civil jury instructions, see Cal.
Civ. Jury Inst. 1204, Michery fails to demonstrate that the verdict form improperly
shifted the burden of proof under the risk-benefit test. The jury was properly
instructed that Ford had the burden of proof under the risk-benefit test, and we
presume that the jury followed this instruction. See Weeks v. Angelone, 528 U.S.
225, 234 (2000).
AFFIRMED.
4