Muth v. Ford Motor Co.

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
August 17, 2006
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 05-50431

BARRY WILLIAM MUTH, SR., Individually
and as Next Friend of BARRY WILLIAM MUTH, JR.,
ASHLEY DIANA MUTH, and EVAN PAUL MUTH, minors;
DEE ANNE MUTH, Individually
and as Next Friend of BARRY WILLIAM MUTH, JR.,
ASHLEY DIANA MUTH, and EVAN PAUL MUTH, minors,

Plaintiffs-Appellees,

versus
FORD MOTOR COMPANY; ET AL,
Defendants,

FORD MOTOR COMPANY,

Defendant-Appellant.

Appeal from the United States District Court
For the Western District of Texas, San Antonio Division
USDC No. 5:01-CV-316

Before GARWOOD, HIGGINBOTHAM, and CLEMENT, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

A jury returned a nearly $9 million judgment against Ford

Motor Company for injuries sustained by Barry William Muth Sr.

while traveling in a 1996, four-door Ford Crown Victoria. Ford

appeals, challenging the sufficiency of the evidence, evidentiary

rulings, and the conduct of the trial judge. We affirm.

I

After finishing a pick-up basketball game, plaintiff Barry W.
Muth Sr. and Julius Wineglass, both Majors in the United States

Army, got in a 1996, four-door Ford Crown Victoria and headed back

to Escon village, site of a U.S. Army base, in Riyadh, Saudi

Arabia. Wineglass was driving with Muth in the front passenger

seat, both men wearing seatbelts. Traveling along a four-lane

highway, they approached a right-hand curve going approximately ten

miles per hour over the speed limit. Loose in the turn, Wineglass

lost control of the car and ran it into a three-foot high “Jersey

barrier” separating the two sides of the highway. Although the

precise movement of the car was disputed, generally the left front

wheel climbed the side of the barrier, causing the car to slide

along the barrier for a short distance and, ultimately, to flip,

landing on its roof and coming to rest about 209 feet from where it

initially hit the barrier. Muth sustained a subluxation injury of

the C5-C6 vertebrae in his spinal cord, leaving him a quadriplegic

with only limited use of his arms and hands. Wineglass received

minor injuries and is not party to this litigation.

Muth and his family sued Ford in federal district court,

bringing negligence and strict product liability claims. Muth

alleged two design defects: first, that the 1996 Ford Crown

Victoria contained “inadequate rollover/roof crush protection”; and

second, that the 1996 Ford Crown Victoria contained an “inadequate

occupant restraint system.” During the seven day trial, Muth

focused on the roof strength defect, contending that a stronger and

economically practical roof would have prevented the injury. Keith

2
Friedman, Muth’s expert witness, testified that the roof was

defective because it collapsed twelve to fifteen inches on the

passenger side. Friedman testified that increasing the thickness

of the steel in several parts of the roof structure could have

reduced the “roof collapse” to three inches for $9 per car or two

inches for $31 per car.

Ford did not dispute that a stronger roof would be feasible.

Rather, Ford contended that a stronger roof would do little, if

anything, to prevent injuries in rollover accidents. According to

Ford, during a rollover accident, the body drops toward the ground

–– in other words, toward the roof. Because a normal seatbelt

system allows the body to drop five inches, which is more than the

normal three-to-four inches of clearance between head and roof, the

only way to prevent injuries in rollover accidents is to use a

five-point, NASCAR-style seatbelt with crotch strap, an

impossibility in commercial vehicles. In short, Ford contended

that a stronger roof would not help prevent head-and-neck injuries

in rollover accidents.

Attempting to prove this counterintuitive point, Ford relied

on data from two crash tests: an early 1980s series from General

Motors using Chevy Malibu sedans (“the Malibu test”); and a 2000-

2001 series from Ford using the Controlled Rollover Impact System

(“the CRIS test”). Both tests used slow-motion video and high-

speed cameras to record the precise movements of cars and dummies

during rollovers. Although the district court allowed Ford’s

3
expert witnesses to discuss the data and conclusions drawn from the

tests, the court excluded the demonstrative evidence –– video and

photograph –– illustrating those results.

At the close of all the evidence, Muth withdrew his negligence

claim and only submitted his design defect claim to the jury. The

jury answered “yes” to the question of whether there was “a design

defect in the Crown Victoria at the time it left the possession of

Ford Motor Company that was a producing cause of the injury” and

awarded Muth and his family nearly $9 million in damages. Ford

timely appealed. We have jurisdiction under 28 U.S.C. § 1291.

II

Ford raises four issues. First, Ford, contending that Muth

failed to meet his burden on either theory of design defect, argues

that the district court erred when it denied Ford’s motion for

judgment as a matter of law. Second, Ford contends that even if

there was sufficient evidence, the district court erred when it did

not ask the jury to unanimously agree on one particular design

defect. Third, Ford objects to the exclusion of demonstrative

evidence from the Malibu and CRIS tests. Finally, Ford contends

that remarks of the trial judge in front of the jury were improper,

warranting reversal. We address each in turn.

A

Ford moved for judgment as a matter of law at the close of all

4
the evidence, so our review is de novo.1 We apply the same legal

standard as the district court –– that is, judgment as a matter of

law will only be granted if “the facts and inferences point ‘so

strongly and overwhelmingly in the movant’s favor that reasonable

jurors could not reach a contrary conclusion.’”2

Ford objects to the sufficiency of the evidence on both

theories of design defect. As to the inadequate roof strength,

Ford contends that Muth failed in his burden to establish that the

vehicle was in substantially the same condition at the time of the

accident as it was at the time of manufacture, pointing to evidence

suggesting that the windshield had been replaced prior to the

accident. As to the inadequate restraint system, Ford contends

that Muth failed to establish any safer alternative designs, a

requirement imposed by law. We disagree with the former, but agree

with the latter.

1

Although cast as an insufficient evidence charge, Ford’s

objection to the jury’s finding of defective roof strength is

really that Muth did not put on sufficient evidence of an essential

element in his prima facie case –– namely, that he failed to

establish that the 1996 Crown Victoria was in substantially the

1
Coffel v. Stryker Corp., 284 F.3d 625, 630 (5th Cir. 2002).

2
Flowers v. Southern Regional Physician Services, Inc., 247 F.3d 229, 235
(5th Cir. 2001) (quoting Omnitech Int’l, Inc. v. Clorox Co., 11 F.3d 1316, 1322
(5th Cir. 1994)).

5
same condition at the time of the accident as it was at the time of

manufacture. Muth questions Ford’s reading of Texas law, citing to

cases placing the burden on the defendant to show that the injury

was caused by a substantial alteration in the product.

Ford cites two cases for the proposition that Texas law

requires the plaintiff to prove that the product was in

substantially the same condition at the time of accident as at the

time of manufacture: Uniroyal Goodrich Tire Co. v. Martinez, from

the Supreme Court of Texas, which only states that Texas follows

Section 402A of the Restatement (Second) of Torts;3 and Syrie v.

Knoll International, from our Court, which reads Section 402A to

put the burden on the plaintiff to show that “the product reached

the consumer without substantial change in its condition from the

time of original sale.”4 But the Restatement says nothing about

the burden of proof,5 and subsequent cases, some cited by Muth,

suggest that the burden of showing a substantial alteration in the

3
977 S.W.2d 328, 334-35 (Tex. 1998); see also McKisson v. Sales Affiliates,
Inc., 416 S.W.2d 787, 788-89 (Tex. 1967).
4
748 F.2d 304, 306 (5th Cir. 1984).
5
Section 402A provides, in part, “One who sells any product in a defective
condition unreasonably dangerous to the user or consumer or to his property is
subject to liability for physical harm thereby caused to the ultimate user or
consumer, or to his property, if (a) the seller is engaged in the business of
selling such a product, and (b) it is expected to and does reach the user or
consumer without substantial change in the condition in which it is sold.”
Restatement (Second) of Torts § 402A (1965).

6
product lies with the defendant.6

Both arguments miss the mark. Both arguments focus on the

windshield, but we need not resolve who has the burden of proof to

show that the vehicle involved in the accident had the same (or a

similar) windshield as the vehicle off the assembly line if the

windshield played no part in Muth’s theory of design defect. We do

not read Ford’s argument to suggest that Muth has the burden to

show that the vehicle had not changed in any respect from the time

it left Ford’s manufacturing plant. All products, especially

complex products like cars, change between the time of purchase and

the time of accident, but not every change would obviate a

manufacturer’s liability. Muth could have replaced the tires on

the car, which may mean it was not in substantially the same

condition as at the time of manufacture, but the replacement tires

are only relevant if they were a cause of the accident. Put

another way, regardless of who carries the burden of proof on a

substantial alternation, the supposed alteration must be relevant

to the theory of defect.

All of this is subsumed by the basic elements of a design

6
See Olympic Arms, Inc. v. Green, 176 S.W.3d 567, 587 (Tex. App.––Hous.
[1st Dist.] 2004, no pet.) (“Substantial alteration of a product is a type of
product misuse and an affirmative defense for which the defendant bears the
burden of proof.” (citing Placencio v. Allied Indus. Intern., Inc., 724 S.W.2d
20, 22 (Tex. 1987) (“In General Motors v. Hopkins, 548 S.W.2d 344 (Tex. 1977),
this court treated alteration as a type of misuse and thus as an affirmative
defense on which the defendant had the burden of proof.”))); see also Texas
Jurisprudence, Products Liability § 109 (3d ed. 2006) (“There is no burden on the
plaintiff to show that the product involved in an accident-producing event was
not subjected to misuse or alteration after leaving the hands of the product
supplier.”).

7
defect products liability claim: design defect and producing

cause.7 Inherent in the notion of a “design defect” is a “defect”

in the “design” of the product –– that is, a defect existing when

the product was manufactured. The second element, causation, ties

the past to the present, linking the specific defect, existing at

the time of manufacture, to the particular injury. To this end,

Syrie is at least partially right, as Muth must show that the

alleged defect, existing at the time of manufacture, was in

substantially the same condition at the time of the accident. And

this is done by showing that the “design defect” was the “producing

cause” of the accident.

So framed, our question is whether the windshield was a

component of Muth’s alleged design defect. If it was, as Ford

contends, then, yes, Muth had the burden to show that the

windshield was in substantially the same condition at the time of

accident as at the time of manufacture. Only then would there be

a “design defect” that was a “producing cause” of Muth’s injuries.

If the windshield was not part of the theory, then it is only

relevant if Ford can show that the replacement windshield actually

caused Muth’s injuries, rather than the allegedly defectively

designed roof structure.

Ford argues that the windshield had been replaced, that the

7
See Texas Pattern Jury Charges § 71.4B, p. 169 (2003 ed.). To find a
“design defect,” the jury must conclude that the product was “unreasonably
dangerous as designed.” Turner v. General Motors Corp., 584 S.W.2d 844, 847-48
& n.1 (Tex. 1979).

8
original windshield contributed to the roof strength and that there

was no evidence it was replaced with a Ford-manufactured product,

that the replacement conformed to Ford’s design specifications, or

that the replacement was installed correctly. All of that may be

true, but it is beside the point. The windshield’s contribution,

if any, to the roof strength was not part of Muth’s theory of

design defect, as explained by Keith Friedman, Muth’s expert

witness. His analysis did not turn on the role of the windshield.

He stated plainly “that the roof structure was defectively

designed” because “it had a very weak roof rail and A pillar, B

pillar system, header system,” and when testifying as to safer

alternative designs, he never mentioned any changes to the

windshield. Ford’s treatment of the case confirms that the

windshield was not a relevant aspect of Muth’s design defect case.

Ford did not cross-examine Friedman on any contribution of the

windshield to the overall strength of the roof, and Kenneth

Orlowski, Ford’s expert witness, testified that during testing,

“the roof peak strength relies more on the . . . the metal

structure and the B pillar behind the A pillar.” Ford cannot

reinvent Muth’s theory of design defect on appeal and then contend

that Muth’s evidence was insufficient.

If Ford was proceeding on a substantial alteration theory ––

that is, the replaced windshield was the real cause of Muth’s

injuries –– then it likely failed in its proof. Ford’s evidence

that the windshield was replaced is scant at best. Orlowski

9
testified that it was his “understanding” that the windshield had

been replaced, no more. It is doubtful that this is sufficient to

warrant an instruction on substantial alteration,8 but the answer

to that inquiry is of no moment here. Procedurally and even more

probative, Ford did not raise substantial alteration as an

affirmative defense, nor did it request an instruction on the issue

during the charge conference. The bottom line is that factual

issues relating to the windshield and its contribution, if any, to

the roof strength and Muth’s injuries, were not part of this case,

and Muth presented sufficient evidence that the design defect,

properly construed, was a producing cause of his injuries. The

district court did not err when it denied Ford’s motion for

judgment as a matter of law on the roof strength defect.

2

As to the inadequate restraint system, we agree with Ford that

Muth did not present sufficient evidence of a safer alternative

design, a necessary element of Texas law on which Muth had the

burden.9 Muth does not contest this point, stating in his brief

8
See Texas Pattern Jury Charges § 70.5, p. 161 (2003 ed.) (“A product is
not in a defective condition, thus not unreasonably dangerous when sold, if the
unreasonably dangerous condition is solely caused by a substantial change or
alteration of the product after it is sold, and but for which unreasonably
dangerous condition the event would not have occurred.”); Woods v. Crane Carrier
Co., Inc., 693 S.W.2d 377, 379-80 (Tex. 1985) (finding the evidence sufficient
to warrant a substantial alternation instruction); Ramirez v. Volkswagen of Am.,
788 S.W.2d 700, 701-02 (Tex. Civ. App.––Corpus Christi, 1990) (same); see also
Fed. Pac. Electric Co. v. Woodend, 735 S.W.2d 887, 892-93 (Tex. Civ. App.––Ft.
Worth, 1987) (holding that failure to request altered condition instruction
waived any error).
9
See Tex. Civ. Prac. & Rem. Code § 82.005.

10
that the inadequate roof strength design defect was the “entire

focus” of his case. The district court judge erred when it denied

Ford’s motion for judgment as a matter of law on the restraint

system defect.10

B

The question becomes, however, whether that error makes any

difference in this case. Ford contends that it does, citing the

general rule, first recognized by the Supreme Court in Maryland v.

Baldwin,11 that “when a case is submitted to the jury on a general

verdict, the failure of evidence or a legal mistake under one

theory of the case generally requires reversal for a new trial

because the reviewing court cannot determine whether the jury based

its verdict on a sound or unsound theory.”12 That occurred here,

at least according to Ford, because Muth proceeded on two design

defect theories, both supposedly submitted to the jury,13 one

illegitimate.

We agree that if both theories are put to the jury, a new

10
See Smith v. Louisville Ladder Co., 237 F.3d 515, 520 (5th Cir. 2001)
(insufficient evidence to establish safer alternative design under Texas law).

11
112 U.S. 490, 493 (1884); see also Wilmington Star Mining Co. v. Fulton,
205 U.S. 60, 78 (1907); United New York and New Jersey Sand Hook Pilots Ass’n v.
Halecki, 358 U.S. 613, 619 (1959).
12
Pan Eastern Exploration Co. v. Hufo Oils, 855 F.2d 1106, 1123 (5th Cir.
1988); Nowell ex rel. Nowell v. Universal Electric Co., 792 F.2d 1310, 1312 (5th
Cir. 1986).
13
Question 1 of the verdict form stated, “Was there a design defect in the
Crown Victoria at the time it left the possession of Ford Motor Company that was
a producing cause of the injury in question?”

11
trial is generally necessary when the evidence is insufficient on

one.14 But this Court, as well as many others, have engrafted a

sort-of harmless error gloss onto the basic principle. Braun v.

Flynt is our case.15 There, we upheld a general verdict for

invasion of privacy, despite an instruction authorizing recovery on

either a “false light” theory, that was supported by the evidence,

or on a “appropriation” theory, that was not. We concluded that

the “entire focus” of the plaintiff’s case was her claim that the

publication of an indecent photograph of her in Chic Magazine, a

Larry Flynt production, “created a false impression of her and

damaged her reputation.” On review, we were both “totally

satisfied” and “reasonably certain” that the verdict in the

plaintiff’s favor was not based on the erroneously submitted

appropriation theory.

Braun applies here. True, as Ford points out, Muth’s fourth

amended complaint alleged two design defects: inadequate roof

strength and an inadequate restraint system. That being said, the

inadequate restraint system played little role during the trial.

Muth made no mention of that theory during voir dire or during

14
See Olney Savings & Loan Ass’n v. Trinity Banc Savings Ass’n, 885 F.2d
266, 271-73 (5th Cir. 1989) (upholding general verdict on fraud when jury charge
listed eleven acts of fraud, each supported by sufficient evidence).
15
731 F.2d 1205 (5th Cir. 1984); see also Collum v. Butler, 421 F.2d 1257,
1260 (7th Cir. 1970); Morrissey v. Nat’l Maritime Union of Am., 544 F.2d 19, 26-
27 (2d Cir. 1976); Mueller v. Hubbard Milling Co., 573 F.2d 1029, 1038-39 (8th
Cir. 1978); Asbill v. Housing Authority of the Choctaw Nation, 726 F.2d 1499,
1504 (10th Cir. 1984).

12
opening arguments. During closing argument as Muth’s counsel was

summarizing the case, he referenced only the inadequate roof

strength defect. He stated, “Ladies and gentlemen of the jury, the

answer to Question 1, Was this vehicle defectively designed in not

having a stronger roof? Yes.” Muth’s counsel never mentioned the

allegedly defective restraint system.

Furthermore, evidence of a defect in the Crown Victoria’s

restraint system was minimal. Keith Friedman, Muth’s expert

witness, was asked whether other changes could be made to the Crown

Victoria to improve the occupant protection system. Friedman then

discussed changes to the seatbelt system, recognizing how the

seatbelt can work in tandem with the roof to prevent injuries in

rollover accidents. Yet, Friedman testified that he did not take

into account changes in the seatbelt system when evaluating the

design modifications to the roof structure, and Ford did not

question his comments about the restraint system.

Ford also points to statements by Muth’s counsel during an in

camera conference on the jury instructions, in which Muth’s counsel

argued that the restraint system was still part of the case. We

find these statements, made outside the presence of the jury,

insufficient to bring the restraint system back into the case.

Importantly, here, the jury instructions did not identify the two

different design defect theories. From the jury’s perspective,

they had no reason to think the restraint system was at issue,

aside from the minimal comments of Friedman. The allegedly

13
defective restraint system was not mentioned during voir dire,

opening argument, or closing argument.

This case illustrates how an evidentiary deficiency can work

in tandem with the rule concerning general verdicts in multi-claim

lawsuits. Without a doubt, a party can present evidence sufficient

to invoke Baldwin’s rule, which requires reversal, but insufficient

to sustain even a favorable jury verdict. Muth presented

sufficient evidence of a design defect in the roof strength, and we

are “totally satisfied” or “reasonably certain” that the jury

decided in Muth’s favor on that defect and that defect alone.16

C

Ford next objects to the district court’s exclusion of

demonstrative evidence –– video and photograph –– from the Malibu

test, a rollover crash test conducted by General Motors in the

early 1980s using a Chevrolet Malibu, and the CRIS test, a rollover

crash test conducted by Ford in 2000-2001 using a 1998-2000 model

Crown Victoria. The Malibu test was one of the first attempts to

determine the relationship between roof deformation and injury.

Improving on the Malibu test, the CRIS test was conducted after the

National Highway Traffic Safety Administration sought comments on

Federal Motor Vehicle Safety Standard 216, which set requirements

on the amount of weight the roof structure in passenger cars must

16
For the same reasons, we reject Ford’s claim that they are entitled to
a unanimous decision by the jury on the particular design defect. They got that
here, as only one defect was presented.

14
withstand. The CRIS test controlled the position, momentum, and

point of impact of the vehicle’s first contact with the ground.

According to Ford, both tests illustrate how a stronger roof would

do little, if anything, to prevent injuries in rollover accidents.

Ford offered the visual evidence from the tests to assist the

jury in understanding their expert’s testimony regarding the

general dynamics of rollover accidents. Muth objected, pointing to

several differences between the conditions involved in the tests

and the conditions, at least as Muth saw them, involved in the

accident. The court excluded the demonstrative evidence, noting

that the tests were not conducted “under substantially the same

conditions as those that [were] involved in this particular

litigation.”

We review the exclusion of demonstrative evidence for an abuse

of discretion.17 No one seriously contests that the video and

photographs help the jury understand the general dynamics involved

in rollover accidents. The evidence illustrates Ford’s claim that

during rollover accidents, head-and-neck injuries can occur prior

to any roof deformation. Importantly here, however, Ford’s expert

witness testified at length to this conclusion. In other words,

the jury heard the evidence; the only question is whether the

district court abused its discretion when it forced Ford’s expert

17
Big John, B.V. v. Indian Head Grain Co., 718 F.2d 143, 146 (5th Cir.
1983); Jon-T Chemicals, Inc. v. Freeport Chemical Co., 704 F.2d 1412, 1417 (5th
Cir. 1983).

15
witness to testify without his visual aids.18

When the demonstrative evidence is offered only as an

illustration of general scientific principles, not as a reenactment

of disputed events, it need not pass the substantial similarity

test.19 Such demonstrative aids, however, must not be misleading

in and of themselves, and one such way that a demonstration might

mislead is when, as here, the demonstration resembles the disputed

accident. Indeed, it is this resemblance which gives rise to the

requirement of substantial similarity. As the First Circuit has

explained, “Scientific principles, when demonstrated in a fairly

abstract way, are quite unlikely to be confused with the events on

trial. The more troublesome cases, however, are ones like this one

where some principles of some kind may be demonstrated but in a

fashion that looks very much like a recreation of the event that

gave rise to the trial.”20

The district court rejected Ford’s demonstration as not quite

similar enough, yet that same demonstration too closely resembles

the disputed accident to effectively present abstract principles

without misleading the jury. One of the central disputes in this

18
Shipp v. General Motors Corp., 750 F.2d 418, 428 (5th Cir. 1985) (“GM was
not deprived of an opportunity to present evidence; rather it was not allowed to
present it in the way it preferred. So viewed and so weighed on the Rule 403
scale, there was no error.”).
19
Four Corners Helicopters, Inc. v. Turbomeca, S.A., 979 F.2d 1434, 1442
(10th Cir. 1992); 1 K. Broun, McCormick on Evidence § 202 (2006).

20
Fusco v. General Motors Corp., 11 F.3d 259, 264 n.5 (1st Cir. 1993).

16
case concerned the precise movement of the Crown Victoria as it

went from an upright position on top of the Jersey barrier to

upside-down on the pavement below. To Muth, as the car rolled to

the driver’s side coming off the barrier, the left wheel struck the

pavement briefly, causing the back end of the car to bounce back up

and the car to come down on the left front wheel, the car then

rolling onto the roof from the driver’s side. Ford’s accident

reconstructionist, in contrast, contended that the car was airborne

for twelve feet while coming off the barrier, rolling 90 or more

degrees around its lengthwise axis at a rate of 202 degrees per

second. The car then hit the pavement with its left front tire,

wheel assembly, and fender, the forward movement causing it to

pivot around and twist around that point, hitting the pavement

first on the front passenger’s side of the roof.

Ford characterized the CRIS test as essentially depicting

Ford’s theory of the accident, all the while maintaining that it

was offered, not as a reenactment, but only to show general

scientific principles. The CRIS test shows a car dropped directly

onto the roof over the front passenger seat, consistent with Ford’s

theory of the accident; Muth contended, however, that the car

landed first on its front left side before falling onto the front

passenger side. The vehicle in the CRIS test was spun at a

rotational speed of 220 degrees per second, consistent with

testimony from Ford’s expert that the vehicle rolled at a rate of

202 degrees per second as it came off the Jersey barrier; again,

17
Muth disputed this point, contending that the car teetered off the

concrete barrier, making only one-quarter of a roll. As we have

explained, the similarities between Ford’s theory of the accident

and the conditions of the CRIS test heighten the visual evidence’s

prejudicial effect, and this is sufficient to justify the district

court’s exercise of discretion in limiting Ford’s expert to oral

testimony only.

D

Ford’s final point concerns allegedly improper statements of

the trial judge in front of the jury. We review the entire record,

not just individual comments,21 and even when certain conduct is

inappropriate, we will not reverse unless the conduct so permeates

the proceedings that it impairs substantial rights and casts doubt

on the jury’s verdict.22 Although Ford cites many examples of

supposedly improper conduct by the trial judge, only one deserves

discussion.

That incident concerns the same visual evidence from the CRIS

test. All in front of the jury, after Orlowski testified at length

regarding the conclusions drawn from the two crash tests, Ford’s

counsel began questioning Orlowski about the visual evidence

supporting his conclusions. After Orlowski confirmed that the

scientific conclusions drawn from the crash tests were derived from

21
Reese v. Mercury Marine Div. of Brunswick Corp., 793 F.2d 1416, 1423 (5th
Cir. 1986).
22
Bufford v. Rowan Cos., 994 F.2d 155, 157 n.1 (5th Cir. 1993).

18
slow-motion video and high-speed photography, Muth’s counsel

objected. The trial judge then stated:

Counsel, I’m disturbed by your reference to these
photographs. I had excluded these photographs from the
consideration of the jury. I find it inconceivable that
you’d make reference to them after that ruling.

Members of the jury, I viewed the photographs that
he is referring to. And it was obvious to the Court that
there was not sufficient similarity between the
conditions that were –– of the –– that were used in
making these photographs to the accident which is the
basis of this –– I mean, the accident that’s involved in
this lawsuit.

Then, the trial judge concluded the morning session of testimony

and excused the jury for lunch. After lunch, Ford’s counsel moved

for a mistrial, which the court denied.23

We cannot say that the trial judge abused his discretion with

this comment. The court reviewed the visual evidence and allowed

Ford to make a proffer of it. The court’s ruling was clear, Ford’s

counsel asked for certain clarifications, and the trial court made

plain that he wanted no mention of the visual evidence. Ford’s

counsel started down that line, and the trial judge stopped him,

nothing more. We would not say that counsel’s questions crossed

the line, but neither can we say that the court’s response did.

There was no abuse of discretion.

III

Accordingly, the judgment of the district court is AFFIRMED.

23
Transcript, vol. 23, at 113-15.

19
20