Johnson v. Ford Motor Co.

United States Court of Appeals,

Fifth Circuit.

No. 92-7047.

James L. JOHNSON, Plaintiff-Appellant,

v.

FORD MOTOR COMPANY and Ford Motor Company of Canada, Ltd., Defendants-Appellees.

April 19, 1993.

Appeal from the United States District Court for the Southern District of Mississippi.

Before KING and EMILIO M. GARZA, Circuit Judges, and COBB,** District Judge.

PER CURIAM:

nci Darlene Johnson died in an automobile accident on November 25, 1985 while driving her

19831/2 model Ford Escort. In May 1990, James L. Johnson, the father of the deceased, brought

this action against Ford Motor Company and Ford Motor Company of Canada, asserting that his

daughter's Escort was defective and unreasonably dangerous and that this resulted in her death. The

case was tried befo re a jury, which found that the Escort was not defective and unreasonably

dangerous, and that Ford was not negligent. The district court entered judgment accordingly, and

Johnson now appeals from that judgment, alleging several evidentiary errors and challenging a remark

made by Ford's counsel during its closing argument. Finding no error, we affirm.

I. BACKGROUND

In November 1985, Nanci Darlene Johnson ("Darlene") was driving her Ford Escort under

rainy conditions on a two-lane highway running through Mississippi. The 19831/2 Escort was

manufactured in June 1983, and it had been driven approximately 24,000 miles at the ti me of the

accident. The vehicle's front tires had a reasonable amount of tread remaining on them, but the back

tires were nearly slick. For whatever reason, Darlene lost control of the car, spun into the other lane,

and collided with a pickup truck driven by Kathyleen Sammons. Darlene was killed instantly.

A. Spoilation of the Evidence

*
District Court Judge of the Eastern District of Texas, sitting by designation.
 After the accident in November 1985, the Escort was moved numerous times and stored

under various conditions: first, the vehicle was towed to a garage where it was stored for a few

months; it was then moved to another location, and stored in a building for one month; the vehicle

was then moved again, this time to a body shop where it was inspected and photographed; and the

vehicle was then transported to a house, where it was stored outside and on grass for approximately

two years. During the time it was stored outside and on grass, the Escort was examined again; the

wheel cylinders were removed from all four wheels, and more photographs were taken. In May 1988,

the car was towed ten miles to another house and, three months later, it was moved yet again to a

location where it was stored in a shed with a sand floor. Apparently no attempts were made to

protect any parts of the car during this series of moves and periods of storage. Finally, the Escort

was transported to Ohio, where experts examined and photographed the "C.V. joint assembly," and

then thoroughly cleaned and degreased the parts, removing all of the allegedly contaminating debris.

B. Proceedings

James L. Johnson, the father of Nancy Johnson, brought this action against the Ford Motor

Company and Ford Motor Company of Canada, Ltd. (together "Ford") some five years after his

daughter's accident. Before trial, Ford moved for summary judgment, arguing that key evidence had

been altered or destroyed by the repeated moving and outside storage of the car, and by the cleaning

of contaminants from its parts. Johnson argued that, because he had not yet filed his lawsuit, he was

not required to preserve the contaminants. Although the district court denied Ford's motion, it

allowed Ford the opportunity to argue spoilation to the jury at trial.

The case proceeded to trial on December 2, 1991. During the course of trial, Johnson

produced eleven witnesses, and more than one hundred of his exhibits were received into evidence.

Johnson's theory at trial was that a flexible rubber boot covering a "left inboard C.V. joint" on the

front of the Escort was torn prior to Darlene's accident, thereby allowing microscopic debris to

contaminate the joint. According to Johnson, this contamination of the joint made it seize and act

like a brake on the left front wheel, and caused Darlene's car to pivot around that wheel and into the

path of the oncoming pickup truck.
 Plaintiff's expert, Larry Bihlmeyer, a former Ford engineer, theorized that the C.V. joint

assembly had numerous design and manufacturing defects. Specifically, he asserted that: a "boot"

component of this assembly had two design and two manufacturing defects; a retainer inside the boot

had four design defects; and the clamp holding the boot had two design defects and a manufacturing

defect. Bihlmeyer also cited seven alleged defects in the "halfshaft assembly"1 based on the theory

that a sharp screw cut the boot while the car was being assembled. According to Bihlmeyer, there

was inadequate clearance between the retainer and the boot, and, because the material used to

manufacture the boot was too thin, it tore too easily. Bihlmeyer substantiated this testimony by

introducing an exhibit which showed that Ford had received numerous warranty claims involving split

or torn boots and contaminated C.V. jo ints on another line of its cars. Finally, according to

Bihlmeyer, the complexity of having one boot fit several different C.V. joints constitutes a design

defect.

In response, Ford freely admitted that the inboard C.V. joint boots can get torn, and that, as

a result, contaminants may enter the joint. Ford also admitted that the stamped metal retainer used

on Darlene's Escort could cut the boot and that, in its owner's manuals, Ford actually told its

customers that they should inspect the C.V. joint boots periodically for signs of leakage and splitting.

However, Ford contended that the C.V. joint on Darlene's Escort was contaminated during or after

the accident. Ford also contended that contamination of the C.V. joint could not result in the joint

seizing and creating a loss of steering control, and that the worst thing that could result from

contamination of the inboard C.V. joint would be some vibration, clanking, and noise. According to

Ford, Darlene's accident must have been caused by road conditions and driver error.

The case was submitted to a jury on theories of strict liability and negligent design and

manufacture. After two hours of deliberation, the jury unanimously found that the Escort was neither

defective nor unreasonably dangerous, and that it was not negligently designed or manufactured.

Rather than moving for a new trial, Johnson directly appealed to this court.

1
According to the parties' briefs and the record, this assembly is either inclusive of or part of
the C.V. joint assembly.
 II. DISCUSSION

Johnson raises two categories of error on appeal. First, he asserts that the district court

abused its discretion in refusing to admit several documents into evidence. Second, Johnson contends

that the district court abused its discretion by overruling his objection to remarks made in Ford's

closing argument concerning Johnson's alleged failure to produce any evidence that the C.V. joint

assembly had ever caused an accident resulting in personal injury.

A. Evidentiary Rulings

Johnson raises a number of challenges to the district court's evidentiary rulings, most of which

were made pursuant to Rule 403 of the Federal Rules of Evidence. Rule 403 provides that:

[a]lthough relevant, evidence may be excluded if its probative value is substantially
outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury,
or by considerations of undue delay, waste of time, or needless presentation of cumulative
evidence.

This court has recognized that, because of his or her involvement in the trial, a district court

judge often has superior knowledge and understanding of the probative value of evidence. See Hardy

v. Chemetron Corp., 870 F.2d 1007, 1009 (5th Cir.1989). Therefore, we show considerable

deference to the district court's evidentiary rulings, reviewing them only for abuse of discretion. See

Sullivan v. Rowan Companies, Inc., 952 F.2d 141, 146 (5th Cir.1992); Seidman v. American

Airlines, Inc., 923 F.2d 1134, 1138 (5th Cir.1991); Jackson v. Firestone Rubber Co., 788 F.2d

1070, 1075 (5th Cir.1986). In fact, we will reverse a judgment based on an improper evidentiary

ruling "only where the challenged ruling affects a substantial right of a party." Jones v. Benefit Trust

Life Ins. Co., 800 F.2d 1397, 1400 (5th Cir.1986); see also FED.R.EVID. 103(a) ("Error may not be

predicated upon a ruling which admits or excludes evidence unless a substantial right of the party

is affected....") (emphasis added).

With this standard in mind, we now consider Johnson's challenges to the district court's refusal

to admit (1) evidence regarding other lawsuits and claims against Ford, (2) a Ford interoffice

memorandum, and (3) certain evidence regarding the wire ring retainer. Johnson also challenges

statements made by Ford during its closing argument.

1. Other Lawsuits and Claims
 Johnson's first evidentiary challenge involves evidence of five other lawsuits against Ford and

claims made by four other customers. Ford moved in limine to prohibit Johnson from presenting this

evidence, and, to show the court the nature of the allegations in these other cases, attached copies

of the complaints and customer letters to its motion.2 In short, Ford argued that (1) these other

lawsuits are not relevant because their facts and circumstances are not substantially similar to the facts

2
In the brief its has submitted to this court, Ford summarizes these other cases and complaints
as follows:

(1) Barton v. Ford Motor Company. The complaint in this case was filed
in 1987. The lawsuit involved a 1985 Mercury Topaz. Plaintiff alleged that the
vehicle was defective and that the defect "resulted in an inability to maintain
control over the vehicle by the operator thereof...."

(2) Fletcher v. Ford Motor Company. The complaint in this case was filed
on May 21, 1985. The lawsuit involved a 1982 Ford EXP. Plaintiff alleged that
while driving the EXP, "the wheel and axle assembly broke."

(3) Knox v. Ford Motor Company. The complaint in this case was filed in
May 1985. Plaintiffs alleged that in May 1984, a 1983 Mercury Lynx that Mrs.
Knox was driving "began to "bounce all over the road.' " Plaintiffs further alleged
that they "do not have [sic] know the cause of the product failure."

(4) Lomeo v. Ford Motor Company. This case involved a 1985 Ford
Tempo. Plaintiff alleged that "the left front wheel did become unattached from the
motor vehicle through no fault or action of the plaintiffs, causing said vehicle to go
out of control...."

(5) Webb v. Ford Motor Company. This case concerned an accident that
occurred in late 1985 and involved a 1985 Escort. Plaintiff alleged that the Escort
"suffered a mechanical failure and struck a guardrail."

(6) Blakeney claim. Mr. Blakeney wrote to Ford claiming that, in January
1984, the axle on his 1982 Mercury Lynx broke and the car went off the road.

(7) Brenner claim. Ms. Brenner alleged that in 1985 the axle on her 1984
Tempo "snapped," the ball bearings came apart, and the left front wheel fell off,
causing her to lose control of the car.

(8) Caruso claim. According to a Ford "Field Contact Report" dated
October 31, 1985, Mr. Caruso, who was an employee of a Ford dealership, stated
that he "unexpectedly lost control" of a 1985 Tempo and went into a ditch.
According to the report, "dealership personnel" expressed an opinion that "the half
shaft CV joint broke allowing the half shaft to break the steering linkage which
caused the loss of control."

(9) Pleasant claim. In a letter to Ford dated August 1985, the Pleasants
stated that the axle on their 1983 Escort "disintegrated," causing the driver to lose
control of the car.
and circumstances in the case before us, and, (2) even if relevant, these other unadjudicated claims

and lawsuits constitute mere hearsay which is more prejudicial than probative. Rather than showing

substantial similarity, Johnson argued that these other lawsuits (1) are relevant to the issue of notice

and (2) constitute the type of evidence commonly relied upon by experts to establish the existence

of a defect.

Similarly, Johnson attempted to admit two letters from the National Highway Traffic Safety

Administration (NHTSA) to Ford, and a responsive let ter by Ford. The letters from the NHTSA

state that the agency received twenty-four reports of alleged steering system failures in its 1984

Tempo and Topaz vehicles and twenty-five reports of alleged transaxle halfshaft assembly failures in

its 1984-1986 Tempo and Topaz vehicles. The NHTSA asked Ford to provide copies of owner

complaints and to identify and describe all accidents and lawsuits known to Ford pertaining to the

alleged defect. Ford's letter to the NHTSA provided all the information requested, and an attachment

to the letter summarized the two accident reports and three lawsuits "alleging failure, separation,

malfunction or similar unsatisfactory performance of transaxle halfshaft assemblies in 1984-1987

Tempo and Topaz vehicles."3 Again, Ford moved in limine to exclude this evidence on the grounds

that: the letters constitute hearsay; the information they contain is irrelevant because it pertains to

other vehicle lines and concerns different defects; and, to the extent it is relevant, information in the

form of correspondence with an agency charged with ensuring highway safety would be more

prejudicial than probative. The district court granted Ford's motions to prohibit Johnson from

presenting this evidence. The court based its rulings on findings that the evidence at issue constitutes

hearsay, the probative value of which is substantially outweighed by the unfair prejudice that would

result from its admission.

On appeal, Johnson reasserts his contentions that this evidence is relevant and that it has

probative value outweighing its prejudicial effect. We reject Johnson's assertions for the following

reasons:

3
One of the accident reports involved the Caruso claim; two of the lawsuits were the Barton
and Lomeo actions; and the incidents underlying the remaining lawsuit and accident report
occurred after the Johnson accident. See supra note 2.
 Ford's summary of claims and lawsuits. This is the same type of evidence which this court

found to constitute inadmissible hearsay in Roberts v. Harnischfeger Corp., 901 F.2d 42, 44-45 (5th

Cir.1989). In Roberts, the plaintiff sought to introduce an affidavit of an employee of the defendant

that briefly summarized copies of notices of pending litigation against the defendant, along with other

reports concerning the allegedly defective products. This court held that the evidence was properly

excluded because "Harnischfeger did not prepare the notices and reports, and the allegations made

therein were hearsay." 901 F.2d at 45. Similarly, in the case at issue, Jo hnson has attempted to

introduce a brief summary of claims, lawsuits, and complaints (as opposed to a summary of Ford

investigations and tests, for example), which amounts to nothing more than a summary of allegations

by others which constitute hearsay.

Evidence of other accidents. When evidence of other accidents or occurrences is offered for

any purpose other than to show notice, the proponent of that evidence must show that the facts and

circumstances of the other accidents or occurrences are "closely similar" to the facts and

circumstances at issue. See McGonigal v. Gearhart Industries, Inc., 851 F.2d 774, 778 (5th

Cir.1988); Jackson v. Firestone Tire & Rubber Co., 788 F.2d 1070, 1082-83 (5th Cir.1986).

Moreover, even when a substantial similarity of circumstances is established, the district court has

broad discretion to exclude such evidence under Rule 403 of the Federal Rules of Evidence. See

FED.R.EVID. 403.

None of the other alleged accidents at issue appear to have involved the precise mechanical

defect alleged by Johnson.4 Moreover, all of these complaints and claims involved either different

models of Ford vehicles or Escorts with model years different from the 19831/2 Ford Escort driven

4
Specifically, as summarized in Ford's brief, in Barton, the alleged defect was simply a "failure"
of the left halfshaft assembly; in Fletcher, "the wheel and axle assembly [allegedly] broke ...
causing the vehicle to leave the travelled portion of the highway ..."; the car in Knox allegedly
"bounce[d] all over the road" from some unknown cause; in Lomeo, the plaintiff alleged that the
left front wheel became unattached; the issue in Webb was a general allegation of "mechanical
failure"; Blakeney reported that the "axil [sic] broke and the car went off the road"; Brenner
reported that the "axle had snapped"; Caruso reported that the "half shaft CV joint broke
allowing the half shaft to break the steering linkage which caused loss of control"; and Pleasant
reported that "[t]he front axle disintegrated...."
by Darlene at the time of her accident.5 Nevertheless, in response to Ford's motion in limine, Johnson

asserted that this evidence regarding other accidents and claims was relevant to the issue of

notice—thereby relaxing the "substantial similarity" requirement for admissibility. Jackson, 788 F.2d

at 1083 (the "substantial similarity" requirement for admissibility is relaxed when evidence of other

accidents is offered solely to show notice). However, even when it is offered solely to show notice,

the proponent of such evidence must establish reasonable similarity. See Mills v. Beech Aircraft

Corp., Inc., 886 F.2d 758, 762 (5th Cir.1989).

In the case before us, Johnson has failed to establish any recognizable similarity between his

claim and those that are the subject of the evidence at issue: none of these other claims involved

allegations that contamination in an inboard C.V. joint caused the steering mechanism to freeze up

and the car to react as Johnson alleges Darlene's car reacted.6 Moreover, as stated by Ford,

Johnson made no showing or even attempted to establish that Ford had notice of any of the
claims or lawsuits before Darlene Johnson's accident in November 1985.... [T]here is no
evidence that Ford was served with any of the complaints or received any of the claims before

5
The following is a summary of the vehicles involved in these other alleged incidents, which are
discussed supra at note 2:

Barton: 1985 Topaz

Blakeney: 1982 Lynx

Brenner: 1984 Tempo

Caruso: 1985 Tempo

Fletcher: 1982 EXP

Knox: 1983 Lynx

Lomeo: 1985 Tempo

Pleasant: 1983 Escort

Webb: 1985 Escort
6
For this same reason, we reject Johnson's assertion that this evidence of other occurrences is
relevant and necessary to rebut statements made by Ford's witness, Jerry Mann, that he was not
aware of any instances in which the inboard C.V. joint on a Ford vehicle "seized" and caused a
loss of steering control. As stated by Ford, "none of [the incidents at issue] involved an accident
resulting from a contamination and seizure of an inboard C.V. joint; thus, they were of no value
in impeaching Mann's testimony."
 November 1985. See [Julander v. Ford Motor Co., 488 F.2d 839, 846 (10th Cir.1973) ].7

Accordingly, we conclude that the district court did not abuse its discretion by refusing to admit this

evidence.

The NHTSA letters. Johnson also challenges the district court's exclusion of NHTSA letters

regarding a preliminary inquiry which did not result in any action by the NHTSA. Johnson asserts

that these letters should have been admitted to impeach Mann's testimony that he was unaware of any

incident in which an inboard C.V. joint seized and caused a vehicle to go out of control. See supra

note 6. The letters at issue regard a NHTSA investigation, but they were not written to Mann and

do not bear on Johnson's assertion that Mann was aware of these NHTSA inquiries. Moreover,

beyond the fact that these were merely preliminary inquiries which did not result in any action by

NHTSA, and the fact that they were directed at different lines of cars, as stated by Ford, "the "official'

nature of the inquiries could have misled the jury into believing that "something' was wrong with Ford

cars." See Fowler v. Firestone Tire & Rubber Co., 92 F.R.D. 1, 2 (N.D.Miss.1980) (in addressing

the inadmissibility of a NHTA report, stating that, "because this documentary evidence is in the form

of reports promulgated by agencies of the United States government, its apparent "official' nature is

likely to cause a jury to give the evidence inordinate weight"). Accordingly, we conclude that the

district court did not abuse its discretion by refusing to admit the NHTSA correspondence.

Summation. The evidence at issue involves nine complaints regarding several lines of Ford

cars and allegations of mechanical defects distinguishable from the defect alleged in the case before

us. We hold, therefore, that the district court did not abuse its discretion in determining that the

probative value of this evidence is substantially outweighed by the danger of unfair prejudice to Ford.

See FED.R.EVID. 403; Hardy, 870 F.2d at 1009; Brooks v. Chrysler Corp., 786 F.2d 1191

(D.C.Cir.), cert. denied, 479 U.S. 853, 107 S.Ct. 185, 93 L.Ed.2d 119 (1986).8

7
Footnotes and citations were omitted.
8
In Brooks, plaintiffs alleged that the brake piston on a 1979 Chrysler LeBaron seized, causing
the car to pull suddenly in the direction of the non-rotating wheel; the alleged defect was a
dustboot which allowed contaminants to enter the mechanism. 786 F.2d at 1192. To substantiate
this claim, plaintiffs sought to present exhibits to the jury relating to a 1978-80 NHTSA
investigation into brake piston seizure in 1976-80 Chrysler vehicles—evidence which consisted
2. Ford's Inter-office Memorandum

Johnson also challenges the district court's refusal to admit a Ford inter-office memorandum

which discusses a proposed owner-notification program for a problem caused by an alternator splash

shield which was installed on certain 1984 Escort and Lynx cars. This memorandum recommended

deferring the owner-notification program on the grounds that, "[w]hile there will be a potential for

water and dirt to enter around the C.V. joint, it is not certain that this would adversely affect vehicle

operation."

Johnson asserts that this memorandum is relevant to show that Ford knew its joint boots were

being cut and that joints were being contaminated. However, Ford has not disputed these issues.9

Johnson also argues that the memorandum constitutes "direct evidence that, prior to Darlene's death,

Ford did consider that contamination of the C.V. joint might pose a threat to the safety of its drivers."

Nevertheless, as stated by Ford, "[i]t is undisputed that the Johnson's Escort was not equipped with

this splash shield. In fact, ... it was first introduced in the 1984 models. Thus, the documents had

primarily of 330 consumer complaints in which owners detailed their problems with their vehicles
and how these problems interfered with the operation of their cars. Id.

The district court excluded these exhibits, ruling that (1) they were hearsay, (2)
plaintiffs failed to show that the occurrences were substantially similar, and (3) the
minimal probative value of these exhibits would be substantially outweighed by the danger
of unfair prejudice to Chrysler. 786 F.2d at 1193. The D.C. Circuit affirmed, holding that
the evidence was properly excluded pursuant to Rule 403:

We also recognize that evidence of similar incidents may be particularly probative
on the issue of whether one particular product contained a specific defect. This
type of evidence, however, is not particularly probative when, as in this case, it
does not even suggest that the defect alleged by the plaintiff exists or that any of
the few reported accidents were caused by that defect, and it only shows the
possible existence of another similar, but not identical, defect in approximately two
percent of Chrysler's automobiles manufactured during 1976-1980.

786 F.2d at 1198 (citations omitted). In the case before us, according to Ford, even
"[ex]pressed as a percentage of Escort sales alone, this amounts to 2/1000 of one percent
of the approximately 3 to 5 million Escorts sold during the 1980s."
9
Ford freely admitted at trial that its boots could get cut—in fact, it admitted that they could
get torn completely off—while the vehicle was being driven, and that contaminants could enter
the C.V. joint when this occurred. Moreover, the district court admitted vehicle warranty reports
which revealed that Ford had received a number of customer complaints concerning cut boots and
contaminated C.V. joints.
absolutely no relevance to any issue in this case."10 Therefore, we conclude that the district court did

not abuse its discretion in excluding this evidence.

3. Drawings Regarding the Wire Ring Retainer

Johnson contends that the district court erred by rejecting two engineering drawings which

predate the manufacture of Darlene's Escort and depict a halfshaft and C.V. joint assembly with a wire

ring retainer. Johnson's strongest argument regarding the relevancy of these drawings is that they

show that, prior to manufacturing Darlene's Escort, Ford was aware of a feasible alternative design

for a ring retainer capable of alleviating the cutting problems. Nevertheless, (1) Ford stipulated at

trial that a feasible alternative design was available, reducing Johnson's contention to a non-issue, and

(2) these drawings are of a halfshaft assembly for a 1985 Tempo/Topaz with a manual transmission

rather than for a 19831/2 Ford Escort with an automatic transmission. We conclude, therefore, that

the district court did not abuse its discretion in finding that the drawings are of questionable probative

value in the case at issue.

Johnson also offered engineering drawings to show that Ford's drawings of a wire ring

retainer contained the following legend: "Restrictions to help safeguard health, safety and the

environment apply to substances used in the item(s) addressed by the document." Ford challenged

the admissibility of this evidence at trial and, outside the presence of the jury, Mann testified that this

legend addressed materials used in the manufacture of the retainer—namely asbestos—and not the

function of the part. Johnson did not offer evidence to controvert this testimony, and he did not again

offer the documents into evidence later during trial. Accordingly, we conclude that Johnson has no

basis for raising this issue on appeal.

B. Ford's Closing Argument

Johnson also challenges statements made by Ford in its closing argument. Specifically,

Johnson asserts that

[t]he trial court tied Plaintiff's hands and let Ford land a fatal blow to Plaintiff's case when,
after ruling out evidence of other accidents, it allowed defense counsel to argue that if the
Plaintiff had been able to find evidence of a single accident resulting from a halfshaft failure

10
Emphasis has been added.
 such as the one in question, that we would have presented it. Furthermore, the court refused
to instruct the jury that evidence of other accidents had been ruled out of the case.

According to Johnson, Ford violated its own motion in limine to exclude Johnson's evidence of other

accidents when it made such statements.

This court has recognized that the district court "is in a far better position than an appellate

court to evaluate the prejudice flowing from counsel's improper comments during trial and to

determine the most effective response to ensure a fair trial." Mills v. Beech Aircraft Corp., Inc., 886

F.2d 758, 765 (5th Cir.1989). Even if remarks are deemed improper and a trial judge's response is

deemed inadequate, a new trial will not be granted unless, after considering counsel's trial tactics as

a whole, the evidence presented, and the ultimate verdict, the court concludes that "manifest injustice"

would result by allowing the verdict to stand. Id.

Ford defends the statements at issue by asserting that they were made in response to

statements in Johnson's closing argument referring to warranty reports which allude to C.V. joints

binding and sticking; according to Ford, these statements were made to diminish Mann's testimony.

Specifically, Ford states that its

counsel's comments simply responded to Plaintiff's counsel's argument and directed the jury's
attention to the fact that, even if they believed Plaintiff's argument that the warranty reports
showed that C.V. joints could bind or stick, there was no evidence that this problem ever
caused an accident.

Moreover, Ford contends that, even if the statements Johnson challenges were improper, they do not

justify a new trial for, "[a]fter 12 days of trial with hundreds of exhibits admitted into evidence, this

single statement by counsel in closing surely could not have affected the final verdict."

We conclude that the impropriety of Ford's statements, if any, is offset by the statements by

Johnson which prompted them. Moreover, as discussed above (see supra Part II.A.1), the evidence

of other lawsuits and claims offered by Johnson did not have enough probative value to survive Rule

403 of the Federal Rules of Evidence, and Johnson never offered admissible evidence of an accident

like Darlene's resulting from a halfshaft failure caused by the contamination of an inboard C.V. joint.

In short, the alleged prejudicial effect of Ford's statements is minimized by the fact that their accuracy

is supported by the record, and we conclude that Johnson has not presented us with a case of manifest
injustice. See Mills, 886 F.2d at 765.

III. CONCLUSION

For the foregoing reasons, we AFFIRM the judgment of the district court.