Satcher v. Honda Motor Co.

United States Court of Appeals,

Fifth Circuit.

No. 94-60492.

James C. SATCHER, Plaintiff-Appellee,

v.

HONDA MOTOR COMPANY, et al., Defendants-Appellants.

May 30, 1995.

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

Before POLITZ, Chief Judge, REAVLEY and BARKSDALE, Circuit Judges.

REAVLEY, Circuit Judge:

The manufacturer and seller of Honda motorcycles appeal for

the second time1 a judgment in favor of a rider who lost his leg in

a collision between his motorcycle and an automobile. His vehicle

had no leg guards, an omission that plaintiff Satcher claims made

the product defective and unreasonably dangerous in a crash. The

district court's judgment enforces a jury verdict. We vacate the

award of punitive damages and otherwise affirm.

BACKGROUND

Satcher sued three Honda companies (collectively Honda) and

obtained a favorable jury verdict awarding him approximately $1

million in actual damages and $2 million in punitive damages. In

the first appeal we held that under Mississippi law the recovery

was barred because the alleged defect, the lack of leg guards, was

1
Satcher v. Honda Motor Co., 984 F.2d 135 (5th Cir.)
(reversing and rendering in favor of Honda), vacated, 993 F.2d 56
(5th Cir.1993) (on petition for rehearing remanding to district
court).

1
open and obvious to the ordinary consumer. We reversed and

rendered, reasoning that the case should have never gone to the

jury and that the district court should have granted defendants'

motion for summary judgment.

A few months after our first opinion, however, the Mississippi

Supreme Court made clear that the Fifth Circuit's rule, that an

open and obvious product defect could not be a ground for

liability, was not Mississippi law. The Mississippi Legislature

also enacted a new statute bearing on product liability. On

rehearing, we vacated the prior opinion and remanded the case to

the district court to address these new developments in Mississippi

law.

The Mississippi case in question is Sperry-New Holland v.

Prestage, 617 So.2d 248 (Miss.1993). The court there approved a

risk-utility analysis in products cases, and held that the trial

court had not erred in applying that analysis rather than a

consumer expectations analysis. The critical distinction for our

purposes is that even if the dangerousness of the product is

obvious to a reasonable consumer, the plaintiff can still recover

in some cases:

In a "risk-utility" analysis, a product is "unreasonably
dangerous" if a reasonable person would conclude that the
danger-in-fact, whether foreseeable or not, outweighs the
utility of the product. Thus, even if a plaintiff appreciates
the danger of a product, he can still recover for any injury
resulting from that danger provided that the utility of the
product is outweighed by the danger that the product creates.
Under the "risk-utility" test, either the judge or the jury
can balance the utility and danger-in-fact, or risk, of the
product.

Id. at 254. The court further made clear that the "patent danger"

2
or "open and obvious" bar to recovery in products cases is not to

be followed in Mississippi:

Under the "patent danger" rule, "a product that has an open
and obvious danger is not more dangerous than contemplated by
the consumer, and hence cannot, under the consumer expectation
test applied in Mississippi, be unreasonably dangerous."
Toney [v. Kawaski Heavy Industries, Ltd.] 975 F.2d [162] at
165 [ (5th Cir.1992) ] (quoting Melton, 887 F.2d at 1243).

Having here reiterated this Court's adoption of a
"risk-utility" analysis for products liability cases, we hold,
necessarily, that the "patent danger" bar is no longer
applicable in Mississippi. Under a "risk-utility" analysis,
the "patent danger" rule does not apply. In "risk-utility,"
the openness and obviousness of a product's design is simply
a factor to consider in determining whether a product is
unreasonably dangerous.

Id. at 256 n. 4. The court further held that Fifth Circuit cases

applying the consumer expectations test had incorrectly applied

Mississippi law. Id. at 256.2

The district court subsequently responded with a carefully

written Memorandum Opinion and Order on Remand. The court pointed

out that the new statute, MISS.CODE ANN. § 11-1-63, § 11-1-65, did

not become effective until July 1, 1993 (procedural) and July 1,

1994 (substantive), too late to have any effect on the 1991 trial

2
Some federal judges have had difficulty understanding
Mississippi products liability law, including the meaning of
comment i of the Restatement (Second) of Torts § 402A (re
"consumer expectations"). See Melton v. Deere & Co., 887 F.2d
1241, 1246 (5th Cir.1989) (Reavley, J., dissenting). No
Mississippi law controlling this case is "in its infancy," as the
dissent characterizes risk-utility submission.

As we emphasize below, the jury has found the product
without leg guards to be unreasonably dangerous, and has
also found that the ordinary consumer would not appreciate
the danger. The majority will not speculate about what a
new jury would decide, but we are convinced that Mississippi
courts would find nothing in this record to justify ordering
plaintiff to retry his case ten years after his injury.

3
of the Satcher case. Moving to Prestage, the district court read

that decision to fault the Fifth Circuit's view of Mississippi law

but not to fault the trial court's submission in this case. While

a risk-utility analysis would have been appropriate under Prestage,

the defendant here requested the consumer expectations instruction

that was given and the jury returned a verdict of unreasonable

dangerousness. There being no error and no manifest injustice, the

judgment was again entered on the verdict.

DISCUSSION

A. The Impact of Prestage.

Honda argues that Prestage altered the analysis used in

products cases, changing the focus away from consumer expectations

for the product to whether the danger outweighs the utility of the

product. Honda contends that the open and obvious nature of the

danger is only one factor to consider, and that because the

analysis now required is fundamentally different, Honda is entitled

to a new trial. In effect, Honda argues that Prestage announced a

new common law rule, and that new rule should be applied

retroactively so as to afford Honda a right to a new trial.

Both the Mississippi Supreme Court and this court have held

that Prestage did not change the law. Prestage concluded that in

prior decisions the Mississippi Supreme Court "has clearly moved

away from a "consumer expectations' analysis and has moved towards

"risk-utility.' " 617 So.2d at 253. It purported to apply a

risk-utility analysis adopted in earlier decisions. Id. at 253.

On rehearing the first appeal in our case, we explained that

4
Prestage held that "contrary to prior Fifth Circuit opinions and

this panel's opinion in the instant case, Mississippi applies a

"risk-utility' analysis in products liability cases and has done so

since 1987." 993 F.2d at 57. We are not in a position to

contradict the Mississippi Supreme Court's own conclusion, as well

as that of our own panel, that Prestage did not change Mississippi

law. It is true, however, that from the perspective of the parties

in this case Prestage has changed the Fifth Circuit's reading of

Mississippi law in that the patent danger of a product is not a bar

to recovery. That change is not in Honda's favor, nor does it mean

that Honda was prejudiced by the law under which this case was

tried.

The Mississippi court has explained to us in Prestage that

the risk-utility analysis of the danger of a product is the

analysis to be used, rather than that of only consumer

expectations. Again, this modification of our understanding of

Mississippi law does not help Honda in this case, and it will not

justify affording Honda a new trial. The modification adds strings

to the bow of the plaintiff, not the defendant. In the words of

the Prestage court:

[E]ven if a plaintiff appreciates the danger of a product, he
can still recover for any injury resulting from that danger
provided that the utility of the product is outweighed by the
danger that the product creates.

617 So.2d at 254.

In the trial of this case the jury was instructed that

Satcher's product liability claim depended upon his proving that

"the product was in a defective condition making it unreasonably

5
dangerous to the user." It was then explained to the jury:

A product is in a defective condition unreasonably dangerous
to the user when it has a propensity or a tendency for causing
physical harm beyond that which would be contemplated by the
ordinary user having ordinary knowledge of a product's
characteristics known to the foreseeable class of persons who
would normally use the product.

Acting under that instruction, the jury found for Satcher,

necessarily finding that the ordinary user would not contemplate

the full propensity or tendency of the lack of leg guards to cause

physical harm. To be sure, users know that motorcycles are

dangerous, and they know that the absence of leg guards might add

to the chances of harm. This jury could find, however, that

Honda's motorcycles were more likely to cost the rider a leg than

the ordinary rider would contemplate. The evidence reflects

experience with motorcycle injuries beyond the contemplation of the

ordinary rider. Since the jury found for Satcher on this issue, it

is immaterial whether the utility of the motorcycle without guards

would weigh less than that danger. Satcher prevailed on the first

step and need not be concerned with the second step, and a retrial

to submit the second step cannot be justified.

B. Punitive Damages

The jury awarded and the district court entered judgment for

punitive damages of $2 million. Honda asks that we reverse this

award because applicable law and the evidence do not support it.

1. Preservation of Error

At the outset we address Satcher's argument that error was not

properly preserved on this point. Satcher points out that Honda

did not file a post-verdict motion for judgment under FED.R.CIV.P.

6
50(b). Rule 50(a) provides for the filing of a motion for judgment

as a matter of law based on insufficient evidence prior to the

submission of the case to the jury. Rule 50(b) provides for a

renewed motion (previously known as a motion for judgment

notwithstanding the verdict or JNOV motion) after the verdict.

To fully preserve error on appeal for failure to grant a

motion for judgment, the moving party must file both a pre-verdict

Rule 50(a) motion at the close of all the evidence and the renewed

Rule 50(b) motion. An appellant who failed to do so in the

district court is not entitled to rendition of judgment in his

favor on appeal, but is at most entitled to a new trial.3

Honda did, however, move for judgment as a matter of law on

the issue of punitive damages at the close of the plaintiff's case

and at the close of all the evidence. After the verdict Honda

filed a motion styled a "motion for new trial," but it not only

argued for a new trial but reurged the motion for judgment, and

specifically argued that a directed verdict should have been

granted on the claim for punitive damages.

Honda's noncompliance with the rule was little more than

failing to style its motion correctly. We excuse technical

noncompliance with Rule 50 where its basic purposes have been

satisfied. E.g., MacArthur v. University of Texas Health Center,

45 F.3d 890, 896-98 (5th Cir.1995); McCann v. Texas City Refining,

Inc., 984 F.2d 667, 671 (5th Cir.1993) ("In the past, the Court has

3
Phillips v. Frey, 20 F.3d 623, 627 (5th Cir.1994); Zervas
v. Faulkner, 861 F.2d 823, 832 n. 9 (5th Cir.1988); Smith v.
Transworld Drilling Co., 773 F.2d 610, 615 (5th Cir.1985).

7
been willing to excuse certain "de minimis' departures from

technical compliance with Rule 50(b)."); Bohrer v. Hanes Corp.,

715 F.2d 213, 216-17 (5th Cir.1983), cert. denied, 465 U.S. 1026,

104 S.Ct. 1284, 79 L.Ed.2d 687 (1984). The basic purposes of the

Rule are "to enable the trial court to re-examine the question of

evidentiary insufficiency as a matter of law if the jury returns a

verdict contrary to the movant, and to alert the opposing party to

the insufficiency before the case is submitted to the jury, thereby

affording it an opportunity to cure any defects in proof should the

motion have merit." Bohrer, 715 F.2d at 216. We conclude that

these basic purposes were satisfied here and that error was

therefore preserved under Rule 50.

2. Whether Satcher Is Entitled to Punitive Damages

Judgment as a matter of law is proper on an issue if "there is

no legally sufficient evidentiary basis for a reasonable jury to

find for that party on that issue." FED.R.CIV.P. 50(a). In

reviewing the denial of a motion for judgment, a jury verdict "must

be upheld unless the facts and inferences point so strongly and so

overwhelmingly in favor of one party that reasonable men could not

arrive at any verdict to the contrary." Western Co. of North

America v. United States, 699 F.2d 264, 276 (5th Cir.), cert.

denied, 464 U.S. 892, 104 S.Ct. 237, 78 L.Ed.2d 228 (1983).

The law of Mississippi allows punitive damages only in

"extreme cases;" they "are not favored in the law and are to be

allowed only with caution and within narrow limits." Tideway Oil

Programs, Inc. v. Serio, 431 So.2d 454, 460 & n. 1 (Miss.1983).

8
"[T]here must be some element of aggression or some coloring of

insult reflecting malice, gross negligence, or ruthless disregard

for the rights of others." Illinois Cent. R.R. v. White, 610 So.2d

308, 320 (Miss.1992). In regards to gross negligence, "punitive

damages are ordinarily recoverable only in cases where the

negligence is so gross as to indicate reckless or wanton disregard

of the safety of others." Beta Beta Chapter of Beta Theta Pi

Fraternity v. May, 611 So.2d 889, 894 (Miss.1992) (quoting Belk v.

Rosamond, 57 So.2d 461, 468 (Miss.1952)).

Under these standards, we conclude that Satcher was not

entitled to punitive damages. Evidence relevant to this

inquiry—the dangers of a motorcycle lacking leg guards and Honda's

knowledge of such dangers—can be summarized as follows. While

police motorcycles have leg guards, all motorcycles marketed by all

manufacturers to the general public lack them. Satcher's theory,

therefore, was that Honda's conduct in marketing its products in

the same design of every motorcycle marketed in the world to the

general public was so extreme or outrageous as to justify punitive

damages.

Motorcycle leg injuries are a common and serious problem of

which Honda and the industry as a whole are aware. Leg injuries

account for a significant percentage of all motorcycle injuries.

The concept of protective leg guards on motorcycles has existed

since the 1930's. A number of scientific studies, of which Honda

is aware, have been conducted over the years regarding the efficacy

of leg guards. A British physician, Dr. Bothwell, conducted some

9
early tests in the 1960's. Two engineers, Arthur Ezra and Harry

Peterson, received federal funding to conduct further tests at the

Denver Research Institute (DRI). They both testified as experts

for Satcher, and were of the view that "robust" leg guards or a

reinforced "fairing" should be available on motorcycles, and would

have been effective in reducing Satcher's injuries. They believe

that all motorcycles lacking leg guards are unreasonably dangerous

products. An accident reconstruction expert, Dr. Fogerty,

testified to the same effect. Ezra and Peterson worked with Dr.

Bothwell on the DRI studies. Dr. Bothwell apparently disagrees

with Ezra and Peterson, although the exact nature of the

disagreement is not clear from the record.

"Conventional" leg guards or crash bars which are not as

strong as Ezra and Peterson recommend are available in kits and are

added to police motorcycles. Police crash bars are used in part to

hold lights or other accessories needed on police vehicles. Their

efficacy as a safety device is the subject of disagreement.

Kenneth Harms, a former Miami police chief with experience on the

motorcycle patrol and in investigating motorcycles accidents,

believes that police crash guards, particularly those used on

Harley-Davidson motorcycles, are effective in reducing injuries.

Harms conceded that he had no scientific or engineering expertise

in motorcycle design. Harley-Davidson has expressly recommended

against the use of crash bars on its police motorcycles.

Although certain studies indicate that leg guards are

effective, no government in the world has ever required them. No

10
professional organization that reviews engineering safety

standards, such as the Society of Automotive Engineers or the

American National Standards Institute, has ever recommended leg

guards. Ezra believes that the failure of the federal government

to act on his own work was due to a deregulatory environment in

government during the Carter/Reagan years and pressure from the

industry.

Honda presented two well-qualified experts, John Snider and

Warner Riley, who opined that leg guards should not be used because

their safety benefits are outweighed by their safety disadvantages,

including the possibility of greater upper body injuries. For

example, Riley explained that the problem with unpadded robust bars

is that they can cause the cyclist to leave the motorcycle and land

upside down, and that padded crash bars increase in-flight

whiplash, which can result in a broken neck. They were also of the

view that in this particular accident Satcher would not have

benefitted from crash bars. There is a disagreement in the

scientific community as to whether head impact increases when crash

bars are used.

Honda itself conducted certain crash tests in the 1960's. One

report concluded that at certain speeds crash bars are effective at

reducing leg impact in an angled collision. However, it found that

in broadside collisions "there seems to be an indication that each

of the various body area impacts is greater in the case of

motorcycles equipped with crash bars than in the case of those

which are not," and that a commercially available crash bar "has no

11
protective effect or it has a possible reverse effect in broadside

collision[s]." This conclusion was disputed by Ezra as not

supported by Honda's own experimental data. The report also noted

that it was far from definitive.4 A Honda chief engineer testified

that "thus far we have created, tested, evaluated various

experimental devices; however, we have yet to come up with a ...

practical as well as effective device that would protect the leg."

Summarizing, the jury heard evidence that (1) there is a

genuine dispute in the scientific community as to whether leg

guards do more harm than good, (2) no government or agency thereof

has ever required them, (3) no independent testing or professional

organization has ever recommended them, (4) one of the original

researchers on the problem who worked with two of plaintiff's

experts disagrees with them, (5) the industry as a whole

categorically rejects the need for leg guards, and (6) Honda's own

testing on their use reached no definitive conclusions. On this

record we hold that no reasonable jury could conclude under

Mississippi law that this is an "extreme case" meriting punitive

damages, or that Honda's conduct rose to level of "malice, ruthless

disregard or gross negligence" required for the imposition of such

4
It states in its preface:

To judge the propriety of equipping motorcycles with
crash bars, we must, as described later, have the
cooperation of many other studies. The present test is
by no means satisfactory; it is a mere fragment of the
long-term test program extending over the future.
Therefore, a definitive conclusion cannot be drawn from
the present test results; however, our approach to the
elucidation of effect of the crash bar is to be carried
on for the improvement of motorcycle safety.

12
damages. We therefore vacate the award of punitive damages.

C. Evidentiary Rulings

Honda complains of several evidentiary ruling by the court.

"Under [FED.R.EVID.] 103(a), appellate courts should reverse on the

basis of erroneous evidentiary rulings only if a party's

substantial rights are affected. Moreover, the party asserting

error based on erroneous rulings bears the burden of proving that

the error was harmful." Carroll v. Morgan, 17 F.3d 787, 790 (5th

Cir.1994) (citation omitted).

Honda complains that Kenneth Harms (discussed above) should

not have been allowed to testify as an expert on lower leg

protection. "A trial court's ruling regarding admissibility of

expert testimony is protected by an ambit of discretion and must be

sustained unless manifestly erroneous." Christophersen v. Allied-

Signal Corp., 939 F.2d 1106, 1109 (5th Cir.1991), cert. denied, 503

U.S. 912, 112 S.Ct. 1280, 117 L.Ed.2d 506 (1992). Honda argues

that Harms is not an engineer; however FED.R.EVID. 702 allows that

a witness may be qualified by "knowledge, skill, experience,

training or education." The district court did not manifestly err

in finding him qualified to testify as an expert. Among other

qualifications, he was on the Miami police motor squad for

approximately nine years, and has investigated hundreds of

motorcycle accidents. Further, Honda does not demonstrate that its

substantial rights were affected. Harms' testimony regarding leg

guards was cumulative of the testimony of three other experts on

this subject, and he was thoroughly cross-examined regarding his

13
lack of formal scientific and engineering training.

Honda next complains that the testimony of Ezra and Peterson

regarding the severity of Satcher's injuries if a crash bar had

been installed was speculative or lacking in scientific certainty.

We fail to see any error here. Both experts were highly qualified.

Both testified that with proper leg protection Satcher would not

have lost his leg, and Ezra testified that he might have suffered

no more than a bruise. The testimony was properly allowed.

Honda also complains that the court erred in not allowing its

experts to change or modify at trial their opinions given in

pretrial discovery that the accident occurred in Satcher's lane.

The experts agreed before trial that the collision occurred in

Satcher's lane, in part because an eyewitness and the police

officer who investigated the accident had given statements

supporting this conclusion. These two individuals then gave

different testimony at trial, suggesting that the collision might

have occurred in the automobile's lane. The district court

reasoned that it would be unfair to allow the experts to change

their testimony after discovery. Honda argues that this issue is

relevant to Satcher's contributory negligence and assumption of the

risk. While the lane in which the accident occurred is certainly

relevant to contributory negligence, Honda fails to show that its

substantial rights were affected. The jury heard from Satcher, the

eyewitness and the police officer at trial. The jury hardly needed

expert testimony to explain that driving in the wrong lane of

traffic is negligent. As to the question of which lane the

14
accident occurred, Honda fails to explain how expert testimony

would have significantly bolstered or discredited the testimony of

the lay witnesses.

Finally, Honda complains that the district court erred in

failing to submit a jury issue on assumption of risk. The court

did submit instructions on contributory negligence. In Braswell v.

Economy Supply Co., 281 So.2d 669, 677 (Miss.1973), the Mississippi

Supreme Court held that where contributory negligence and

assumption of risk overlap and coincide, the defense of

contributory negligence applied. "If the circumstances show that

the plaintiff may have assumed the risk but also indicate that the

plaintiff may have been negligent without assuming the risk, then

the two doctrines overlap, and only the comparative negligence

instruction should be given." Richardson v. Clayton & Lambert Mfg.

Co., 657 F.Supp. 751, 754 (N.D.Miss.1987). The court did not err

in refusing to submit the assumption of risk instruction.

The award of punitive damages is vacated and in all other

respects the judgment is affirmed.

AFFIRMED IN PART, VACATED IN PART.

RHESA HAWKINS BARKSDALE, Circuit Judge, dissenting in part and
concurring in part:

"Spur not an unbroken horse; put not your plowshare too deep

into new land." Sir Walter Scott, The Monastery [1820]. Answer of

the Author of Waverley to the Letter of Captain Clutterbuck, ch.

25. Even though this matter is governed by entirely new ground

rules, the majority refuses to remand it for a new trial.

Accordingly, I respectfully dissent from that part of its opinion

15
(part A; "The Impact of Prestage "); in all other respects, I

concur.

The Mississippi Supreme Court's fairly recent holding in

Sperry-New Holland v. Prestage, 617 So.2d 248, 253-56 (Miss.1993),

that "risk-utility", rather than "consumer expectations", is, and

has been since 1988, the relevant analysis for Mississippi strict

product liability was, to say the least, most unexpected.1 See,

e.g. Batts v. Tow-Motor Forklift Company, 153 F.R.D. 103, 106

(N.D.Miss.1994) (observing that with Prestage, "the Mississippi

Supreme Court let the rest of the world in on the best kept secret

in Mississippi jurisprudence"). But, Prestage provided only a

broad statement of the law of Mississippi; and, for the reasons

set forth below, I cannot join in the majority's application of

this analysis, still in its infancy in Mississippi, to justify not

holding a new trial.

The majority has concluded that a new trial is not justified,

apparently because Honda would have no reasonable chance of success

under the risk-utility analysis. I cannot agree. To date, there

are no published cases in Mississippi either applying, or further

defining, the Prestage analysis.2 This alone gives pause to the

1
The author of the majority opinion is one of the few who
previously questioned Mississippi's adherence to the consumer
expectations test. See Melton v. Deere & Co., 887 F.2d 1241,
1246-47 (5th Cir.1989) (Reavley, J., dissenting).
2
Not only are there no cases expounding Prestage, there are
also no Mississippi cases detailing the analysis of the cases on
which Prestage relied: Whittley v. City of Meridian, 530 So.2d
1341 (Miss.1988), and Hall v. Mississippi Chemical Exp., Inc.,
528 So.2d 796 (Miss.1988). Indeed, one court has observed that
between 1988, when Mississippi is said to have adopted the

16
majority's conclusion that Honda would necessarily lose under

risk-utility. Furthermore, to the extent Prestage can be clearly

understood, I am troubled by the majority's application.

As stated in Prestage, the proper inquiry in Mississippi for

a strict product liability claim is whether "the danger-in-fact ...

outweighs the utility of the product". 617 So.2d at 254. But, the

Mississippi Supreme Court provided little, if any, guidance for

making this inquiry, stating only that, "[i]n balancing a product's

utility against the risk of injury it creates, a trial court may

find it helpful to refer to the seven factors enumerated in

Professor John Wade's article, On the Nature of Strict Tort

Liability for Products, 44 Miss.L.J. 825." Id. at 256 n. 3

(emphasis added). Those factors are:

(1) The usefulness and desirability of the product—its
utility to the user and to the public as a whole.

(2) The safety aspects of the product—the likelihood that
it will cause injury, and the probable seriousness of the
injury.

(3) The availability of a substitute product which would
meet the same need and not be as unsafe.

(4) The manufacturer's ability to eliminate the unsafe
character of the product without impairing its usefulness or
making it too expensive to maintain its utility.

(5) The user's ability to avoid danger by the exercise of
care in the use of the product.

(6) The user's anticipated awareness of the dangers
inherent in the product and their avoidability, because of

risk-utility analysis, and 1993, when Prestage was decided, at
least one Mississippi Supreme Court case implied that the
consumer expectations test was still applicable. See Batts, 153
F.R.D. at 108-09 (citing Kussman v. V & G Welding Supply, Inc.,
585 So.2d 700, 703-04 (Miss.1991)).

17
 general public knowledge of the obvious condition of the
product, or of the existence of suitable warnings or
instructions.

(7) The feasibility, on the part of the manufacturer, of
spreading the loss by setting the price of the product or
carrying liability insurance.

Id. The majority seems to have found one of the above factors,

number six, to be dispositive, stating:

Acting under [a consumer expectations] instruction, the jury
found for Satcher, necessarily finding that the ordinary user
would not contemplate the full propensity or tendency of the
lack of leg guards to cause physical harm.... Since the jury
found for Satcher on this issue [consumer expectations], it is
immaterial whether the utility of the motorcycle without
guards would weigh less than that danger. Satcher prevailed
on the first step and need not be concerned with the second
step, and a retrial to submit the second step cannot be
justified.

By the foregoing, I understand the majority to conclude that the

jury's finding on consumer expectations trumps, even under the

risk-utility analysis.3 This runs contrary to even the minimal

guidance offered by Prestage.

In light of the seven factors suggested by Prestage, a

consumer's awareness of the danger inherent in a product is but one

factor to consider in the risk-utility analysis. See also

Prestage, 617 So.2d at 256 n. 4 (rejection of "patent danger"

3
It seems more than somewhat anomalous to give credence to
the jury's verdict for Satcher under the consumer expectations
test, when, on appeal from that verdict, our court found that,
under this (consumer expectations) analysis, Honda was entitled
to judgment as a matter of law; accordingly, we reversed and
rendered judgment for Honda. Satcher v. Honda Motor Co., Ltd.,
984 F.2d 135, 138 (5th Cir.), vacated, 993 F.2d 56 (5th
Cir.1993). Our court vacated its opinion, not because of a
change of heart regarding Honda's entitlement to judgment under
the consumer expectations analysis, but because Prestage revealed
that consumer expectations was no longer the test in Mississippi.
Satcher, 993 F.2d at 57-58.

18
rule). Moreover, Prestage held that foreseeability of danger was

not dispositive: "In determining whether a product is unreasonably

dangerous a reasonable person must conclude that the

danger-in-fact, whether foreseeable or not, outweighs the utility

of the product." Id. at 255. (emphasis added) (quoting Whittley

v. City of Meridian, 530 So.2d 1341, 1347 (Miss.1988)).4

Rightfully so, the majority does not undertake to predict the

outcome in this case when all of the suggested factors for

risk-utility analysis are applied. With almost no guidance on

risk-utility from the Mississippi courts, we cannot forecast how a

jury might weigh the factors and evidence here. The majority notes

correctly that the risk-utility analysis "adds strings to the bow

of the plaintiff, not the defendant" but, as noted, a panel of this

court held that, as a matter of law, Honda prevailed under the

consumer expectations analysis, and that holding was vacated only

because Prestage signaled that consumer expectations was no longer

4
Prestage reads:

In a "risk-utility" analysis, a product is
"unreasonably dangerous" if a reasonable person would
conclude that the danger-in-fact, whether foreseeable
or not, outweighs the utility of the product. Thus,
even if a plaintiff appreciates the danger of a
product, he can still recover for any injury resulting
from that danger provided that the utility of the
product is outweighed by the danger that the product
creates.

Id. at 254 (emphasis added). The Prestage court made this
statement as a comparison between risk-utility and consumer
expectations—noting that, with risk-utility, unlike consumer
expectations, the plaintiff does not automatically lose only
because he "appreciates the danger of a product". Of
course, the court did not mean that the opposite was true.
See Id. at 254, 255 n. 3 & 4.

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the test in Mississippi. See note 3, supra. To hold now that

Honda necessarily loses is a leap I cannot take.

The risk-utility analysis hardly leaves Honda with no "strings

in its bow". For instance, perhaps it could make a case for the

high utility of motorcycles in general. For another example, and

as to the design at issue, Honda offered evidence that the addition

of leg guards, although offering greater protection against the

injury suffered by Satcher, might actually increase the likelihood

of fatal injury—an obvious important factor in a risk-utility

analysis. Does this mean Honda will prevail? I would not—and,

indeed, cannot—hazard a guess. I note only the obvious: the

ground rules have changed dramatically in Mississippi, and those

rules have yet to be defined with any precision. As such, I cannot

agree with the majority that it would be unjustified to permit the

parties to present their cases to the jury under the proper legal

standard. To the contrary, in my opinion, justice requires it.

Accordingly, I must regretfully, but most respectfully,

dissent.

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