[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
AUGUST 18, 2005
No. 04-12520 THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 02-01014-CV-ORL-31-DAB
MAI THI TRAN,
NADER NEMAI,
Plaintiffs-Appellants,
versus
TOYOTA MOTOR CORPORATION,
TOYOTA MOTOR SALES U.S.A., INC.,
TOKAI RIKA CO., LTD.,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(August 18, 2005)
Before BLACK, WILSON and STAPLETON*, Circuit Judges.
_________________________________
*Honorable Walter K. Stapleton, United States Circuit Judge for the Third Circuit, sitting
by designation.
WILSON, Circuit Judge:
On December 15, 1998, Mai Tran drove home from work in Orlando,
Florida, in her 1983 Toyota Cressida. Her car crossed the center line and collided
head-on with another vehicle. Tran’s Cressida was equipped with a restraint
system consisting of a manual lap belt and an automatic shoulder belt. The
shoulder belt was a “passive” restraint. When the driver’s door was opened, the
belt slid along a motorized track towards the front of the car, allowing the driver to
enter or exit. When the door closed, the belt slid back on its track into place,
restraining the driver.
Tran was not wearing the manual lap belt during the accident. As a result of
the collision, Tran suffered a spinal cord injury that rendered her quadriplegic.
Tran and her husband 1 sued Toyota Motor Corporation, the manufacturer of her
vehicle, alleging negligence and strict liability in the manufacture, design, and
testing of the Cressida, and that these defects were the cause of her injury.
Specifically, she contended that the Cressida’s automatic shoulder belt improperly
fit shorter passengers like Tran. Tran was between 5'2" and 5'4" at the time of the
accident. Tran asserted that the shoulder belt rode across her neck at the point of
1
For convenience, this opinion refers to the Plaintiffs-Appellants as “Tran.”
2
her injury. Tran claimed the belt instead should have been positioned to ride
across her shoulder and sternum. Toyota’s defense was that the passive restraint
system was not defectively designed, that the shoulder belt did not cause Tran’s
spinal cord injury, that the belt could not have been across Tran’s neck given the
details of her injury, and that the cause of the injury was the inertial forces of the
collision.
At the conclusion of an eight-day trial, the jury, finding that the vehicle’s
passive restraint system was not defective and that Toyota was not negligent,
returned a verdict for Toyota. The district court entered a final judgment in
accordance with the verdict, and Tran timely appealed.2 Tran presents three claims
on appeal, and we address them in turn.
I. Jury Instruction
Tran contends that the court’s instruction to the jury on strict liability design
defect misstated the law. In a diversity case, the jury charge must accurately state
the substantive law of the forum state. Wilson v. Bicycle South, 915 F.2d 1503,
1510 (11th Cir. 1990). “[T]he manner of giving jury instructions is procedural
rather than substantive,” and thus our review is governed by federal law. Id. at
1511. “We review jury instructions de novo to determine whether they misstate the
2
The district court exercised jurisdiction pursuant to 28 U.S.C. § 1332, and we have
jurisdiction under 28 U.S.C. § 1291.
3
law or mislead the jury to the prejudice of the objecting party.” Conroy v.
Abraham Chevrolet-Tampa, Inc., 375 F.3d 1228, 1233 (11th Cir. 2004) (quoting
Palmer v. Bd. of Regents of the Univ. Sys. of Ga., 208 F.3d 969, 973 (11th Cir.
2000)).
“Under Florida law, a strict product liability action requires the plaintiff to
prove that (1) a product (2) produced by a manufacturer (3) was defective or
created an unreasonably dangerous condition (4) that proximately caused (5)
injury.” McCorvey v. Baxter Healthcare Corp., 298 F.3d 1253, 1257 (11th Cir.
2002) (citing Edward M. Chadbourne, Inc. v. Vaughn, 491 So. 2d 551, 553 (Fla.
1986)).
Tran requested a jury instruction on design defect drawn from the Florida
Standard Jury Instruction PL 5, which provides in relevant part that:
A product is unreasonably dangerous because of its design if
the product fails to perform as safely as an ordinary consumer would
expect when used as intended or in a manner reasonably foreseeable
by the manufacturer or the risk of danger in the design outweighs the
benefits.
Florida Standard Jury Instructions – Civil Cases, 778 So. 2d 264, 271 (Fla. 2000).
The court ruled that this instruction was “inappropriate” and declined to issue
Tran’s requested instruction. The court instead issued a jury instruction crafted
from the Restatement (Third) of Torts: Product Liability § 2. The relevant portion
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read as follows:
A product is defective in design when the foreseeable risk of
harm posed by the product could have been reduced or avoided by the
adoption of a reasonable alternative design by the seller and the
omission of the alternative design renders the product not reasonably
safe to the user. This standard for judging whether a product is
defective in design incorporates a reasonableness (“risk utility
balancing”) test. More specifically, the test is whether a reasonable
alternative design would, at reasonable cost, have reduced the
foreseeable risks of harm posed by the product and, if so, whether the
omission of the alternative design by the seller rendered the product
not reasonably safe. The balancing of risks and benefits in judging
product design and marketing must be done in light of the knowledge
of risks and risk-avoidance techniques reasonably attainable at the
time of distribution.
A broad range of factors may be considered in determining
whether an alternative design is reasonable and whether its omission
renders a product not reasonably safe. The factors include, among
others, the magnitude and probability of the foreseeable risks of harm,
the instructions and warnings accompanying the product, and the
nature and strength of consumer expectations regarding the product,
including expectations arising from product portrayal and marketing.
The relative advantages and disadvantages of the product as designed
and as it alternatively could have been designed may also be
considered. Thus, the likely effects of the alternative design on
product costs; the effects of the alternative design on product
longevity, maintenance, repair, and esthetics; and the range of
consumer choice among products are factors that may be taken into
account. The relevance of these factors and other factors vary,
depending on the facts as you find them. Moreover, the factors
interact with one another. For example, evidence of the magnitude
and probability of foreseeable harm may be offset by evidence that the
proposed alternative design would reduce the efficiency and the utility
of the product. On the other hand, evidence that a proposed
alternative design would increase production costs may be offset by
evidence that the product portrayal and marketing created substantial
expectations of performance or safety, thus increasing the probability
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of foreseeable harm. Depending on the mix of these factors, a number
of variations in the design of a given product may be relevant to
determining whether a product is defective. In sum, the rule that a
product is defective in design if the foreseeable risks of harm could
have been reduced by a reasonable alternative design is based on the
commonsense notion that liability for harm caused by product designs
should attach only when harm is reasonably preventable.
R. 187 at 9-10.
While the court’s instruction did mention “the nature and strength of
consumer expectations” as one factor in the risk-utility test it directed the jury to
apply, it did not, as Tran requested, provide for a consumer expectation test as an
independent basis for liability. The court’s instruction was an erroneous statement
of Florida law.
A few months after Tran’s trial, the Florida Fifth District Court of Appeal
decided Force v. Ford Motor Co., 879 So. 2d 103 (Fla. Dist. Ct. App. 2004). In
that case, plaintiff Force alleged that he was injured in an automobile collision
when his seatbelt failed to restrain him. He sought a jury instruction, drawn from
the standard Florida jury instruction, that provided both the consumer expectations
test and the risk-utility test. The trial court agreed with the defendants that only the
risk-utility test applied, and instructed the jury accordingly. Id. at 105
The District Court of Appeal reversed. First, the court held that every case
to have addressed the issue confirmed the applicability of the consumer
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expectations test under Florida products liability law, “at least for some products.”
Id. at 108. Then, the court addressed the defendants’ contention that the consumer
expectations test was inappropriate in complex product cases, where the jury
“simply has no idea how [the product] should perform.” Id. at 109 (internal
quotation omitted). Surveying cases, the court ultimately concluded that seatbelts
were not such a product, and that consumers were capable of forming expectations
about their performance. Id. at 109-10.
Force controls our decision on this issue. Toyota attempts to distinguish
Force by noting that here the district court included consumer expectations as a
factor in the risk-utility analysis, whereas the trial court in Force did not mention
consumer expectations at all. However, Florida law recognizes consumer
expectations as “one of the independent standards to be applied in at least some
Florida products liability cases.” Id. at 108 (emphasis added).
We emphasize that we do not hold that the consumer expectations test jury
instruction is required in all product liability cases. We merely hold, like the court
in Force, that the instruction is proper as an independent basis for liability under
Florida law when the product in question is one about which an ordinary consumer
could form expectations. Under Florida law, seatbelts are such a product. The
district court did not have the benefit of the Force court’s analysis, but in light of
7
that case we must conclude that the court erred in not instructing the jury that it
could find for Tran under a consumer expectations theory.
Our review of a district court’s jury instruction is deferential, but we will
reverse a district court because of an erroneous instruction if we are “left with a
substantial and ineradicable doubt as to whether the jury was properly guided in its
deliberations.” Carter v. DecisionOne Corp., 122 F.3d 997, 1005 (11th Cir. 1997)
(quoting Johnson v. Bryant, 671 F.2d 1276, 1280 (11th Cir. 1982)). Tran was
prejudiced by the erroneous instruction because the jury was not aware that
consumer expectations was an adequate and independent basis for liability, rather
than merely one factor among many in the risk-utility balance. Toyota’s
contention that Tran could have argued her consumer expectations theory to the
jury is misplaced because, under the instruction the court issued, she was unable to
argue that unmet consumer expectations were an independently sufficient basis for
liability. Indeed, the jury could not have found Toyota liable even if consumer
expectations were unmet, if it determined that other factors in the risk-utility
balancing test outweighed that factor. In sum, we cannot say that the jury
instruction “sufficiently instructed the jury so that the jurors understood the issues
and were not misled.” Carter, 122 F.3d at 1005 (quoting Wilkinson v. Carnival
Cruise Lines, Inc., 920 F.2d 1560, 1569 (11th Cir. 1991)). Accordingly, we
8
conclude that the district court erred in instructing the jury and that the error
requires a remand for a new trial.
II. Exclusion of Dr. Clark’s Testimony
Tran next argues that the district court erred in excluding the testimony of
Dr. Charles Clark. Tran proposed to present Dr. Clark as an expert witness to
testify about Tran’s neck injury from a “micro perspective.” Appellants’ Brief at
18. Tran was able to offer the testimony of the treating physician, Dr. Michael
Cheatham. In addition, Tran presented the expert testimony of Dr. Joseph Burton,
whose testimony Tran characterizes as encompassing a “macro perspective” on the
collision and Tran’s injury. Id. at 17.
After Dr. Burton testified, Toyota objected to Dr. Clark’s testimony as
cumulative. See Fed. R. Evid. 403. The court examined Dr. Clark’s deposition
and expert witness report, and extensively examined Dr. Clark’s qualifications.
The court concluded that Dr. Clark’s opinions, and the bases for these opinions,
were the same as those of Dr. Burton. The court sustained Toyota’s objection and
excluded Dr. Clark from testifying.
“The district court has broad discretion to determine the admissibility of
evidence, and we will not disturb the court’s judgment absent a clear abuse of
discretion.” United States v. McLean, 138 F.3d 1398, 1403 (11th Cir. 1998). “An
9
abuse of discretion can occur where the district court applies the wrong law,
follows the wrong procedure, bases its decision on clearly erroneous facts, or
commits a clear error in judgment.” United States v. Brown, Nos. 03-15413, 03-
15459, ___ F.3d ___, 2005 WL 1594456 at *7 (11th Cir. July 8, 2005) (discussing
admissibility of expert testimony) (citing McClain v. Metabolife Intern., Inc., 401
F.3d 1233, 1238 (11th Cir. 2005)).
Tran relies on Johnson v. United States, 780 F.2d 902 (11th Cir. 1986). In
that case, we held that the exclusion of a third expert witness as cumulative was an
abuse of the district court’s discretion. Id. at 906. We noted that the excluded
expert’s “analysis was somewhat different,” his testimony was “more
comprehensive,” and the witness “had different, and arguably better qualifications
than the other experts.” Id. The same is not true here.
Drs. Burton and Clark relied on the same medical evidence in forming their
opinions. In addition to testimony about the collision and inertial forces, Dr.
Burton testified about Tran’s neck injury and the impact of the seat belt. These
“micro” issues are the same as those about which Dr. Clark would have testified.
Moreover, the treating physician, Dr. Cheatham, testified about Tran’s injury as
well. In sum, Tran presented extensive testimony to the jury suggesting that the
seat belt caused her injury, and it is not at all clear that Dr. Clark would have added
10
any different information that Tran could not have presented through Drs. Burton
and Cheatham. Additionally, unlike in Johnson, Dr. Clark’s qualifications are not
significantly greater than the other doctors’. Finally, Tran could have called Dr.
Clark when given an opportunity for rebuttal, but did not call him at that time.
While we note that in Johnson we held that a third expert witness was not
cumulative, whereas Dr. Clark was excluded from testifying as a second expert
witness, the mere number of witnesses is not conclusive when these other factors
support the district court’s decision.
District courts have broad authority over the management of trials. Id. at
905. Part of this authority is the power to exclude cumulative testimony. Fed. R.
Evid. 403; Johnson, 780 F.2d at 905. “Inherent in this [abuse of discretion]
standard is the firm recognition that there are difficult evidentiary rulings that turn
on matters uniquely within the purview of the district court, which has first-hand
access to documentary evidence and is physically proximate to testifying witnesses
and the jury.” United States v. Jernigan, 341 F.3d 1273, 1285 (11th Cir. 2003).
“[U]nder the abuse of discretion standard of review there will be occasions
in which we affirm the district court even though we would have gone the other
way had it been our call.” Rasbury v. Internal Revenue Serv. (In re Rasbury), 24
F.3d 159, 168 (11th Cir. 1994). On this record, we cannot say that the court would
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have abused its discretion had it allowed Dr. Clark to testify. The testimony likely
would not have unduly prolonged the trial, Dr. Clark’s practice and experience was
somewhat different from that of the other doctors, and Tran might have presented
her evidence differently had she known earlier that Dr. Clark would be excluded.
Given our deferential standard of review, however, we cannot say that the district
court’s decision fell outside its permissible “range of choice.” United States v.
Kelly, 888 F.2d 732, 745 (11th Cir. 1989). Therefore, we affirm the court’s order
excluding Dr. Clark’s testimony as cumulative.
III. Toyota Study of Other Incidents
Finally, Tran argues that the district court erred in admitting into evidence a
study of Cressida accidents performed by Dr. Donald Huelke in the 1980s (“the
Toyota study” or “the study”). “[T]his court will afford great deference to the
decisions of the district court with regard to evidentiary matters. We will only
reverse a district court’s ruling concerning the admissibility of evidence where the
appellant can show that the judge abused his broad discretion and that the decision
affected the substantial rights of the complaining party.” Heath v. Suzuki Motor
Corp., 126 F.3d 1391, 1395 (11th Cir. 1997) (quoting Wood v. Morbark Indus.,
Inc., 70 F.3d 1201, 1206 (11th Cir. 1995)).
The Toyota study was an examination of other accidents involving the
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Cressida’s restraint system. Toyota introduced the study to demonstrate the
system’s overall effectiveness in a wide array of accidents. Tran asserts that the
Toyota study should not have been admitted because Toyota did not prove that the
accidents in the study were substantially similar to hers.
The doctrine of substantial similarity
applies when one party seeks to admit prior accidents or occurrences
involving the opposing party, in order to show, for example notice,
magnitude of the danger involved, the [party’s] ability to correct a
known defect, the lack of safety for intended uses, strength of a product, the
standard of care, and causation. In order to limit the substantial prejudice that
might inure to a party should these past occurrences or accidents be admitted into
evidence, courts have developed limitations governing the admissibility of such
evidence, including the “substantial similarity doctrine.” This doctrine applies to
protect parties against the admission of unfairly prejudicial evidence, evidence
which, because it is not substantially similar to the accident or incident at issue, is
apt to confuse or mislead the jury.
Heath, 126 F.3d at 1396 (quoting Jones v. Otis Elevator Co., 861 F.2d 655, 661
(11th Cir. 1988)) (internal citation and footnotes omitted; alteration in original).
The substantial similarity doctrine does not apply to situations, like this one,
where the evidence is “pointedly dissimilar” and “not offered to reenact the
accident.” Heath, 126 F.3d at 1396-97. The evidence may have had some
prejudicial effect on Tran’s case by showing that the Cressida’s restraint system
generally performed well in a variety of accidents (a point that Tran’s expert
conceded). But the district court did not abuse its broad discretion in concluding
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that this prejudice did not outweigh the probative value of the study as part of
Toyota’s case that its restraint system was not defectively designed. Id. Therefore,
we affirm the district court’s ruling on Tran’s objection to the admission of the
Toyota study.
IV. Conclusion
For the reasons stated above, we affirm the district court’s decision to
exclude the testimony of Dr. Clark, as well as its decision to admit the Toyota
study into evidence. However, we conclude that the jury instruction regarding
design defect products liability was erroneous. Accordingly, we vacate the district
court’s order and remand the proceeding for a new trial consistent with this
opinion.
AFFIRMED IN PART; REVERSED AND REMANDED IN PART.
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