Connelly v. Hyundai Motor Co.

United States Court of Appeals
For the First Circuit

No. 02-2232

ARTHUR M. CONNELLY, Administrator DBN of
the Estate of Eduardo Cabrera,

Plaintiff, Appellee,

v.

HYUNDAI MOTOR COMPANY,

Defendant, Appellant,

HYUNDAI MOTOR AMERICA; HYUNDAI AUTO CANADA, INC.

Defendants.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Joseph A. DiClerico, U.S. District Judge]

Before

Torruella, Circuit Judge,

Stapleton,* Senior Circuit Judge,

and Howard, Circuit Judge.

Leslie G. Landau, with whom Hitesh S. Barot, Rianne Nolan,
Bingham McCutchen, LLP, Brian P. Crosby, Robert G. Scumaci, Gibson,
McAskill & Crosby, LLP, Bruce Felmly, and McLane, Graf, Raulerson
& Middleton, PA, were on brief, for appellant.
Joseph F. McDowell, III, with whom David C. Dunn and McDowell
& Osburn, P.A., were on brief, for appellee.
 December 5, 2003

*Of the United States Court of Appeals for the Third
Circuit, sitting by designation.
 HOWARD, Circuit Judge. Hyundai Motor Company ("Hyundai")

appeals from a judgment entered in favor of the Estate of Eduardo

Cabrera (the "estate") after a jury found Hyundai liable for

negligently testing or designing an airbag which killed Eduardo in

a car accident.1 We affirm.

I. Background

The tragic circumstances that gave rise to this case

occurred on the night of September 13, 1996 in Nashua, New

Hampshire. Eduardo Cabrera, five-years-old, was a passenger in

the front seat of his parents', Jose and Miriam Cabrera's, 1995

Hyundai Sonata.2 Mr. Cabrera was driving the Sonata home from a

family outing to the movies. At an intersection, the Sonata was

struck by another car on the right side. The collision pushed the

Sonata into a light pole. Upon striking the light pole, the

Sonata's driver and passenger airbags deployed. At the moment of

impact, Eduardo was located between three and ten inches from the

airbag. The airbag hit Eduardo under the chin with such force

that it severed his spinal cord from his brain and killed him.

As a result of the accident, the estate invoked the

federal court's diversity jurisdiction and sued Hyundai for

wrongful death under New Hampshire's "crashworthiness" or

1
The estate is represented by its administrator, Arthur M.
Connelly.
2
The Cabreras purchased the Sonata from Hyundai in the summer
of 1995.

-3-
"enhanced injury" doctrine.3 The estate presented its case under

two theories. First, the estate alleged that Hyundai was strictly

liable for Eduardo's death. Under this theory, the estate

complained that the airbag system which killed Eduardo had an

overly aggressive design and that this defective design caused

Eduardo's death. Second, the estate alleged that Hyundai had

negligently designed and/or tested its airbag system and that

these lapses proximately caused Eduardo's death. Hyundai defended

by introducing evidence tending to show, inter alia, that the

airbag system was not defectively designed and that Eduardo's

death was caused by his failure to wear his seatbelt at the time

of the accident.

After an eleven-day trial, the jury returned general

verdicts exonerating Hyundai on the strict liability count but

finding it liable on the negligence count. The jury did not make

any specific factual findings as part of these verdicts.

Immediately after the jury returned its verdicts, Hyundai moved to

set them aside as inconsistent and asked that the jury be

recharged because it could not rationally have reached differing

conclusions on the strict liability and negligence counts. See

3
The crashworthiness or enhanced injury doctrine extends the
manufacturer's liability to cases in which the plaintiff suffers
separate or enhanced injuries in the course of an initial accident
caused by his own vehicle. See Trull v. Volkswagen of Am., Inc.,
761 A.2d 477, 479 (N.H. 2000).

-4-
Fed. R. Civ. P. 49(b). The district court denied Hyundai's

request, accepted the verdicts, and discharged the jury. Hyundai

subsequently moved for judgment as a matter of law or for a new

trial. The court denied the motion, and Hyundai timely appealed.

II. Discussion

Hyundai raises three claims on appeal. First, it argues

that the district court erroneously permitted the negligence count

to go to the jury and that as a result of this error the jury

returned inconsistent verdicts. Second, it claims that the

district court incorrectly instructed the jury on the limited

relevance of evidence showing that Eduardo was not wearing his

seatbelt at the time of the accident. Third, it contends that the

district court abused its discretion by excluding evidence that,

on two occasions prior to the accident, Mr. Cabrera had been cited

for violating New Hampshire's mandatory seatbelt for minors law,

N.H. Rev. Stat. Ann. § 265:107-a (the "seatbelt law").

A. The Negligence Count and the Inconsistent Verdicts

Hyundai makes two closely-related arguments concerning

the negligence count. First, it argues that the district court

erred by instructing the jury on the negligence count. Hyundai

believes that the district court should have declined to instruct

the jury on this count because "the existence of a defect is a

determinative factor in both negligent design and strict liability

design defect claims," which makes it unnecessary and confusing

-5-
for the jury to consider both claims. Second, Hyundai asserts

that the jury's verdicts were inconsistent because both counts

required the jury to find, as an essential element, that the

airbag system contained a design defect.

Hyundai's claims are not new to this court. We recently

decided two cases in which automobile manufacturers raised

essentially these same arguments. See Trull v. Volkswagen of Am.,

Inc., 320 F.3d 1 (1st Cir. 2002), cert. denied, -- U.S.--, 2003 WL

2129086 (Oct. 6, 2003); Babcock v. Gen. Motors Corp., 299 F.3d 60

(1st Cir. 2002). In those cases, we did not address the

manufacturers' arguments de novo because the manufacturers had

failed to preserve them. We reviewed the claims only for plain

error and permitted the verdicts to stand because the

manufacturers had not met the "stringent" plain error

requirements. See Trull, 320 F.3d at 6; Babcock, 299 F.3d at 62-

66.

Unlike the defendants in Trull and Babcock, Hyundai

followed the strictures of Fed. R. Civ. P. 51 and preserved its

contention that the district court should have withheld the

negligence count from the jury. Accordingly, we will review the

district court's decision to instruct the jury on the negligence

count de novo. See Crowley v. L.L. Bean, Inc., 303 F.3d 387, 394

(1st Cir. 2002).

In interpreting New Hampshire law, "our task is to

-6-
ascertain the rule the state court would most likely follow under

the circumstances, even if our independent judgment on the

question might differ." Cruz v. Melecio, 204 F.3d 14, 21 (1st

Cir. 2000) (quoting Blinzler v. Marriot Int'l, Inc., 81 F.3d 1148,

1151 (1st Cir. 1996)). In performing this function, we hew

closely to the path established by the state's highest court. See

Doyle v. Hasbro, Inc., 103 F.3d 186, 192 (1st Cir. 1996) ("we are

reluctant to extend state law beyond its well-marked boundaries")

(internal quotations omitted). We therefore turn to the New

Hampshire Supreme Court's case law to determine whether, as a

matter of law, the district court erred by submitting the

negligence count to the jury.

The New Hampshire Supreme Court has consistently declined

to adopt the rule urged by Hyundai--that a trial court may not

instruct a jury on both strict liability and negligence counts in

a product liability action. Indeed, on several occasions, the New

Hampshire Supreme Court has approved of a jury being

simultaneously charged on both counts. See Trull, 761 A.2d at

481; Cyr v. J.I. Case Co., 652 A.2d 685, 693 (N.H. 1995); Thibault

v. Sears, Roebuck & Co., 395 A.2d 843, 849 (N.H. 1978). As we

observed in Babcock, "the most that can be said is that submission

of both claims is frowned upon." 299 F.3d at 65 (citing Thibault,

395 A.2d at 849 ("While . . . both counts are permitted, we do not

recommend to plaintiffs that counts in both negligence and strict

-7-
liability . . . be submitted to the jury because of the confusion

which is created.")) (emphasis supplied). As this underscored

language from Thibault suggests, the decision whether to risk

confusion by submitting both counts to the jury rests with the

plaintiff, not the trial court.

To support its claim that New Hampshire law required the

district court to withdraw the negligence count from the jury,

Hyundai relies heavily on the New Hampshire Supreme Court's

decision in Greenland v. Ford Motor Co., 347 A.2d 159 (N.H. 1975).4

Greenland does not support Hyundai's position.

In Greenland, the plaintiffs were injured when their car

spun out of control. Id. at 161. They asserted that their

injuries were caused by a defective ball and socket assembly in

one of the front wheels. Id. at 162. At trial, they proceeded on

a strict liability theory of design defect and a negligence theory

that the defendant's failure to test the vehicle permitted the

design defect to persist. Id. at 163. The trial court permitted

the jury to consider the strict liability claim but dismissed the

negligence claim. Id. at 162-63. The plaintiffs appealed,

4
Hyundai also relies on our decision in Mello v. K-Mart
Corp., 792 F.2d 1228, 1233 (1st Cir. 1986), where we held that
under Tennessee law, the jury's finding that a product was not
defective precluded a finding that the seller was liable in
negligence for its design. Putting aside the factual differences
between Mello and this case (including that the jury in Mello
issued a factual finding that the product at issue was not
dangerous), Mello provides little help because it applies Tennessee
law. Our focus here is on the requirements of New Hampshire law.

-8-
arguing that the jury should have been instructed on both claims.

Greenland, 347 A.2d at 162-63.

The New Hampshire Supreme Court affirmed the decision to

withhold the negligence claim from the jury. Id. It concluded

that when a negligence claim is premised on the same design defect

as a strict liability claim, the trial court has "discretion" to

exclude the negligence claim because asking the jury to consider

both claims could be "confusing." Id. at 163. In the course of

its discussion, however, the court observed that "it is clear that

a products liability action grounded on strict liability may be

joined with an action grounded on negligence." Id. at 163

(internal citations omitted) (emphasis supplied). Thus, Greenland

stands only for the proposition that in cases where the negligence

claim is premised on a design defect, a trial court may, in its

discretion, withhold the negligence claim from the jury. It does

not, as Hyundai suggests, establish a rule that a court must keep

the negligence claim from the jury in these circumstances.

In sum, the New Hampshire Supreme Court permits a "strict

liability action based upon a theory of defective design [to] be

joined with an action grounded in negligence." Trull, 761 A.2d at

481. Thus, the district court did not violate New Hampshire law

by instructing the jury on both the strict liability and

negligence counts.

Having determined that the district court did not err in

-9-
instructing the jury on both counts, we turn to whether Hyundai is

nonetheless entitled to relief because the jury's verdicts finding

negligence, but not strict liability, are inconsistent. "We note,

initially, our substantial reluctance to consider inconsistency in

civil jury verdicts a basis for new trials." Kavanaugh v.

Greenlee Tool Co., 944 F.2d 7, 9 (1st Cir. 1991) (quoting McIsaac

v. Didriksen Fishing Corp., 809 F.2d 129, 133 (1st Cir. 1987)).

Before disregarding a verdict, we "must attempt to reconcile the

jury's findings, by exegesis if necessary." Acevedo-Diaz v.

Aponte, 1 F.3d 62, 74 n.15 (1st Cir. 1993). To perform this

analysis, we determine whether the jury, consistent with its

instructions, could have found negligence but not strict liability

under the facts taken in the light most favorable to the verdict.

See Merchant v. Ruhle, 740 F.2d 86, 91 (1st Cir. 1984).

The court instructed the jury that the estate had to

prove four elements to hold Hyundai strictly liable:

One, that the design of the 1995
Hyundai Sonata . . . created a
defective condition unreasonably
dangerous to the user;

Two, the condition existed when the product was
sold by a seller in the business of selling such
products;

Three, the use of the product was
reasonably foreseeable by the
manufacturer;

And, four, the condition caused
Eduardo's death.

-10-
To find negligence, the court instructed the jury that the estate

had to prove only two elements:

One, that [Hyundai] failed to exercise
reasonable care in designing and testing
the airbag in the 1995 Hyundai Sonata,
and

Two, that [Hyundai's] failure to
exercise reasonable care in designing
and testing the airbag in the 1995
Hyundai Sonata caused or contributed to
the cause of Eduardo's death which would
not otherwise have occurred in the
accident.

There are at least two important differences between the

district court's negligence and strict liability instructions.5

First, for negligence, the estate was not even required to prove

that the airbag system contained a design defect. It was required

to prove only that Hyundai was negligent in testing or designing

the airbag system and that this negligence caused or contributed

to Eduardo's death. Second, the instructions for each theory

presented different standards for assessing the adequacy of the

airbag system's design. To find Hyundai strictly liable, the jury

was instructed that it had to perform a risk-utility analysis in

which it determined that "the magnitude of the danger [of the

5
Hyundai did not object to the district court's instructions
on the elements of negligence or strict liability. Indeed, before
this Court, Hyundai conceded that the instructions "captured the
New Hampshire law on each claim." Thus, in attempting to reconcile
the verdicts, we rely on the law as described by the district
court, without passing on whether these instructions correctly
stated the applicable law.

-11-
airbag system] outweighed the usefulness and desirability of the

product" to "the public as a whole." To find Hyundai liable for

negligent design, the jury was told that it had to conclude that

Hyundai failed to "design the vehicle . . . to avoid an

unreasonable risk of injury to the occupant."

Even assuming, as Hyundai argues, that the jury

necessarily based its liability verdict on a determination that

Hyundai negligently designed the airbag system, the jury,

consistent with its instructions and the evidence, could have

found negligence without finding Hyundai strictly liable.6 The

jury could have rejected the strict liability count because it

decided that, on balance, the benefit to the public of including

the overly aggressive airbag system in the Sonata outweighed the

danger caused by the airbag system (because the system saved many

more lives than it took).

At the same time, however, the jury could have concluded

that Hyundai was negligent in failing to develop a less aggressive

airbag system for the Sonata. The jury heard testimony from an

6
We note that we are not abundantly confident in this
assumption. The jury, instead of finding negligent design, could
have found negligent testing. This would have permitted the jury
to find Hyundai liable for negligence without finding that the
airbag system was negligently designed. See Trull, 320 F.3d at 7
(a verdict finding negligence was consistent with a verdict
rejecting strict liability, where the jury was instructed that the
manufacturer could be liable for "negligent design and/or testing,"
because the jury could have found the manufacturer liable solely
for negligent testing).

-12-
expert witness who testified that the Sonata's airbag system

contained an unnecessarily aggressive inflator. The same expert

also testified that other cars on the market in 1995 contained

less aggressive airbag system designs. In light of this evidence,

the jury could have decided that a less aggressive design was

readily available and in use by other automobile manufacturers.

Under the circumstances, the "jury's efforts to apply the

instructions were understandable and had some basis" in the

evidence. Merchant, 740 F.2d at 91. There is nothing before us

to suggest that the jury was confused by its task or that it

shirked its responsibility. Indeed, it appears from the verdicts

that the jury understood that "the focus of strict liability is on

whether the design itself was unreasonably dangerous whereas in a

negligence case the focus is on the conduct of the manufacturer."

Trull, 320 F.3d at 7. Thus, we have no reason to reverse the

judgment because the jury returned opposite verdicts on the strict

liability and negligence counts.

B. Instruction on Seatbelt Evidence

Hyundai's second challenge concerns the district court's

instruction limiting the jury's consideration of the evidence that

Eduardo was not wearing his seatbelt at the time of the accident.

While the court permitted Hyundai to introduce evidence that

Eduardo was not wearing his seatbelt, it instructed the jury that

its consideration of "[e]vidence of whether or not Eduardo was

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seatbelted is . . . for the limited purpose of deciding whether or

not [Hyundai] has proved the superseding cause defense."7

Hyundai asserts that the district court committed two

errors in so limiting the jury's consideration of this evidence.

First, it claims that the court should have instructed the jury

that it could consider this evidence for the purpose of evaluating

whether the Sonata's airbag system was negligently designed.8

Second, it claims that the court should have instructed the jury

that it could consider this evidence for the purpose of

determining whether the negligently designed airbag system was a

proximate cause of Eduardo's injuries.9

The appropriate use of seatbelt evidence in

crashworthiness cases has been a source of much controversy. See

Gen. Motors Corp. v. Wolhar, 686 A.2d 170, 173 (Del. 1996). For

a long period, many courts refused to permit the introduction of

evidence that a victim was not wearing a seatbelt in a product

liability action. See 2 Madden & Owen, Prod. Liab., § 21:7 (3d

7
The superseding cause defense allows a manufacturer to avoid
liability by showing that a third person's negligence or misuse of
the product was the sole proximate cause of the plaintiff's injury.
See Reid v. Spadone Mach. Co., 404 A.2d 1094, 1099 (N.H. 1979).
8
Hyundai also argues that this evidence was relevant to the
defect prong of the strict liability count. Since the jury found
for Hyundai on the strict liability count, any error in the
instructions concerning this count is harmless.
9
To prove negligence, the estate had the burden of showing
that the negligent design was a proximate cause of Eduardo's
injuries. See Trull, 761 A.2d at 482.

-14-
ed. 2000). Courts provided several reasons for this resistance:

there is no duty to mitigate damages prior to sustaining an

injury; a defendant must take the plaintiff as it finds him or

her; there is no common law duty to wear a seatbelt; and seatbelt

evidence leads to excessive speculation by experts (and thus

protracted litigation). See Swajian v. Gen. Motors Corp., 559

A.2d 1041, 1043 (R.I. 1989).

State legislatures, in enacting mandatory seatbelt laws,

further complicated this issue by including limitations on the

introduction of seatbelt evidence in civil trials. For example,

New Hampshire's seatbelt law contains such a limitation. See N.H.

Rev. Stat. Ann. § 265:107-a IV. The statute requires minors to

wear seatbelts but prohibits a defendant from proving comparative

negligence through evidence that the plaintiff was not wearing his

or her seatbelt.10 Id. (stating that a "violation of [the child

passenger restraint law] shall not be used as evidence of

contributory negligence in any civil action."); see Forsberg v.

Volkswagen of Am., Inc., 769 F. Supp. 33, 36 (D.N.H. 1990).

More recently, some courts have relaxed their skepticism

10
Some other states provide even greater restrictions on the
admission of seatbelt evidence, including preventing the admission
of the failure to wear seatbelts "in any civil action." E.g.,
Conn. Gen. Stat. Ann. § 14-100a(c)(4). Other states permit the
evidence of the plaintiff's failure to wear a seatbelt to mitigate
damages, e.g., Fla. Stat. Ann. § 316.614(9), and yet other states
leave the issue to the courts, e.g., N.J. Stat. Ann. § 39:3-
76.2(h).

-15-
to the introduction of seatbelt evidence in product liability

actions. See, e.g., Jimenez v. DaimlerChrysler Corp., 269 F.3d

439, 457 (4th Cir. 2001); Wolhar, 686 A.2d at 176-77. However,

in deciding whether to admit seatbelt evidence, courts carefully

adhere to the limitations placed on the use of this evidence by

state legislatures. See, e.g., Rougeau v. Hyundai Motor Am., 805

So.2d 147, 157 (La. 2002); Ulm v. Ford Motor Co., 750 A.2d 981,

987-88 (Vt. 2000).

As discussed above, the New Hampshire seatbelt law

prohibits the introduction of seatbelt evidence for the purpose of

establishing the comparative negligence of the plaintiff. See

N.H. Rev. Stat. Ann. § 265:107-a. It does not, however, prevent

the admission of seatbelt evidence for other purposes. See id.

Here, the district court permitted the jury to consider evidence

that the Cabreras' Sonata was equipped with seatbelts in assessing

the overall design of the airbag system. The court concluded,

however, that whether Eduardo was actually wearing his seatbelt at

the time of the accident was not relevant to the safety of the

design. Thus, the court instructed the jury to ignore evidence

that Eduardo was not wearing his seatbelt for the purpose of

deciding whether the Sonata's airbag system was negligently

designed.

The district court's analysis was correct. To find a

negligent design, the jury had to conclude that Hyundai failed to

-16-
exercise "reasonable care in designing a vehicle for those uses

which could be reasonably foreseen in order to avoid an

unreasonable risk of injury to the occupant." In assessing

Hyundai's care in designing the airbag system, the jury could

consider the Sonata's overall airbag system design and not merely

the design of the airbag which struck Eduardo. See, e.g.,

Jimenez, 269 F.3d at 459; Wolhar, 686 A.2d at 175; Lowe v. Estate

Motors Ltd., 410 N.W.2d 706, 719-20 (Mich. 1987). Thus, as the

district court concluded, the presence of safety devices in

addition to the airbags (e.g., seatbelts) could be relevant to the

jury's determination of whether the Sonata's airbag system was

negligently designed. Id.

But while the presence of seatbelts in the Sonata was

potentially relevant to the negligent design issue, whether

Eduardo actually was wearing his seatbelt during the accident was

not. The point at which the jury was to determine whether Hyundai

negligently designed the airbag system was the date when Hyundai

sold the Sonata to the Cabreras in the summer of 1995. See Trull,

761 A.2d at 481; Chellman v. Saab-Scania AB, 637 A.2d 148, 150

(N.H. 1993). Obviously, Eduardo's conduct on the day of the

accident, over a year after the Cabreras bought the Sonata, was

irrelevant to this determination. In short, Eduardo's "conduct

and its causal relation to [his] injuries [was] not relevant to

the issue of the vehicle's design." Lowe, 410 N.W.2d at 720; see

-17-
DePaepe v. Gen. Motors Corp., 33 F.3d 737, 746 (7th Cir. 1994)

("On retrial the district court should again permit [General

Motors] to show that [plaintiff's car] was equipped with a

functional restraint system and should again instruct the jury of

the limited purpose of that evidence."); Hermann v. Gen. Motors

Corp., 720 F.2d 414, 415 (5th Cir. 1983) (holding that jury was

properly instructed that it could consider the "availability of

seat belts" in assessing "dangerousness" of car); LaHue v. Gen.

Motors Corp., 716 F. Supp. 407, 418 (W.D. Mo. 1989)("the

defendants . . . should be permitted to introduce evidence

concerning whether seat belts were available and operable");

Jordan v. Gen. Motors Corp., 624 F. Supp. 72, 75 (E.D. La. 1985)

(holding that plaintiff may introduce evidence on the

"availability of seat belts" in determining whether the car, as

designed, was unreasonably dangerous); Wolhar, 686 A.2d at 176

(concluding that presence of seatbelts is relevant to showing the

vehicle's over-all safety design); Whitehead v. Am. Motors Sales

Corp., 801 P.2d 920, 928 (Utah 1990) (concluding that "presence"

of seatbelts in vehicle was relevant in assessing design).

Hyundai also argues that the district court's limiting

instruction was erroneous because the jury could have relied on

evidence that Eduardo was not wearing his seatbelt to conclude

that the negligent design was not the proximate cause of Eduardo's

-18-
injuries.11 Hyundai failed to properly preserve this argument.

Under Fed. R. Civ. P. 51, a party wishing to object to

an instruction must raise the objection "before the jury retires

to consider its verdict, stating distinctly the matter objected to

and the grounds of the objection." Our interpretation of Rule 51

is quite strict. See Gray v. Genlyte Group, Inc., 289 F.3d 128,

134 (1st Cir. 2002), cert. denied, 537 U.S. 1001 (2002). It is

well-settled in this Circuit that "[e]ven if the initial request

for an instruction is made in detail, the requesting party must

object again after the instructions are given but before the jury

retires for deliberations." Foley v. Commonwealth Elec. Co., 312

F.3d 517, 521 (1st Cir. 2002); see Gray, 289 F.3d at 134; Smith v.

Mass. Inst. of Tech., 877 F.2d 1106, 1109 (1st Cir. 1989). It is

also well-settled "that an objection on one ground does not

preserve appellate review of a different ground." Negron v. Caleb

Brett U.S.A., Inc., 212 F.3d 666, 672 (1st Cir. 2000); see

Cambridge Plating Co. v. Napco, Inc., 85 F.3d 752, 766 (1st Cir.

1996).

Prior to trial, Hyundai requested an instruction

informing the jury, inter alia, that it could consider the

evidence that Eduardo was not wearing his seatbelt "[i]n deciding

11
Hyundai claimed that because Eduardo was not wearing his
seatbelt and sitting too close to the airbag at the time of the
accident, any airbag (no matter its aggressiveness) would have
killed him. Therefore the defect in the airbag system was not the
proximate cause of his death.

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whether the allegedly defective airbag was the proximate cause of

[his] death." The district court refused to give this instruction

and instead instructed the jury that it could only consider the

evidence that Eduardo was not wearing his seatbelt on the issue of

superseding cause. After the court instructed the jury and before

the jury retired to deliberate, Hyundai objected to this

instruction. However, at that time, Hyundai objected only on the

ground that the jury should have been instructed that evidence of

Eduardo's failure to wear his seatbelt could be considered in

deciding if the Sonata's design was crashworthy.12 This was not

sufficient.13

12
Hyundai's objection to the district court's limiting
instruction was, in pertinent part, as follows:

[W]e object and preserve our exception and ask you to charge
the jury regarding the crashworthiness claim so that the jury
is instructed that they may consider the seatbelt evidence in
the context of the crashworthiness claim, and we have as you
know repeatedly asked the Court to provide the jury with a
further instruction that in the context of the overwhelming
evidence in this case, that the system is an integrative
system and that it must be considered with all its component
parts; that the failure by the parents in this case to use the
product properly by using the seatbelt should be considered in
the context of determining the crashworthiness of the vehicle
. . . Certainly the vast majority of jurisdictions we believe
would allow the introduction of seatbelt evidence in a product
case where you are providing it for purposes other than of
comparative fault or damage mitigation, and particularly
where it is part of the underlying system, and I would again
just briefly mention the [Rougeau v. Hyundai case]. That was
in Louisiana. Also Gardner v. Chrysler.

13
In support of this conclusion, we note that Hyundai cited
Rougeau v. Hyundai Motors Am., 805 So.2d 147 (La. 2002) and Gardner

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 When an objection to a jury instruction is forfeited, we

apply the plain error standard. See Gray, 289 F.3d at 134. To

obtain relief under this standard, the party claiming error must

show (1) an error, (2) that is plain (i.e., obvious and clear

under current law) (3) that is likely to alter the outcome, and

(4) that is sufficiently fundamental to threaten the fairness or

integrity or public reputation of the judicial process. See

Babcock, 299 F.3d at 65. Plain error is reserved for only "the

most egregious circumstances." See Moore v. Murphy, 47 F.3d 8,

11 (1st Cir. 1995). Such egregious circumstances do not exist

here.

Hyundai has a plausible argument that the district court

should have instructed the jury to consider the evidence that

Eduardo was not wearing his seatbelt on the issue of proximate

cause. Indeed, some courts have so held. See MacDonald v. Gen.

Motors Corp., 784 F. Supp. 486, 499 (M.D. Tenn. 1992); LaHue, 716

F. Supp. at 416; Wolhar, 686 A.2d at 176-77. However, there is

also substantial contrary authority.14 See Milbrand v.

v. Chrysler, 89 F.3d 729 (10th Cir. 1996) to the district court as
the primary bases for its objection. Both of these cases dealt
with the admission of seatbelt evidence to prove negligent or
defective design. Gardner, 89 F.3d at 737; Rougeau, 805 So.2d at
157. Neither case supports the position pressed by Hyundai here--
that evidence showing that Eduardo was not wearing his seatbelt
should be admitted on the issue of causation.

14
Neither this Court nor the New Hampshire Supreme Court has
addressed the issue.

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DaimlerChrysler Corp., 105 F. Supp. 2d 601, 606 (E.D. Tex. 2000);

Rougeau, 805 So.2d at 157; Swajian, 559 A.2d at 1046; Lowe, 410

N.W.2d at 720-21; Horn v. Gen. Motors Corp., 551 P.2d 398, 404

(Ca. 1976). As one treatise recently stated, "the appropriateness

of evidence of seat belt non-use (as opposed to availability)

raises difficult issues apart from the defectiveness vel non of a

vehicle's design, and the propriety of such evidence is not so

clear." 2 Madden & Owen at § 21:7 (emphasis and parenthesis in

original). In a similar vein, one court observed:

Enough has been written about the
"seatbelt defense" to show the body of law
related to it is split, fragmented and
changing. It varies in time, place,
rationale, effect and implementation. No
doubt the law varies so much because the
theory does not fit neatly into
traditional tort doctrines of negligence
(including duty, breach of duty and
causation), strict liability, contributory
negligence, mitigation of damages,
avoidance of consequences, and comparative
fault."

LaHue, 716 F. Supp. at 410 (internal citations omitted)

(parenthesis in original). As should be evident, the most that

can be said on this issue is that the law is unsettled. See

United States v. Marino, 277 F.3d 11, 32 (1st Cir. 2002)

(concluding that there cannot be plain error where the law is

unsettled), cert. denied, 536 U.S. 948 (2002). Thus, to the

extent that the district court erred by failing to instruct the

jury to consider evidence that Eduardo was not wearing his

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seatbelt on the proximate cause issue, the error was not so

"obvious or clear under current law" that it can be considered a

plain error. Babcock, 299 F.3d at 65.

C. Evidence of Seatbelt Law Citations

Finally, Hyundai challenges the district court's decision

to exclude evidence that Mr. Cabrera had been cited on two

previous occasions for driving his car without fastening Eduardo's

seatbelt in violation of the New Hampshire seatbelt law. We

review a district court's decision to exclude evidence for an

abuse of discretion. See Nieves-Villanueva v. Soto-Rivera, 133

F.3d 92, 98 (1st Cir. 1997).

Hyundai claims that evidence of the citations was

relevant to whether Mr. Cabrera operated the Sonata in a

reasonably foreseeable manner at the time of the accident. See

Reid, 404 A.2d at 1099 (stating that to prove superseding cause

defendant must show that third party used product in manner

unforeseeable to manufacturer). The primary evidence on the

foreseeability issue was the evidence of Mr. Cabrera's supposed

misuse of the Sonata on the date of the accident (i.e., operating

the Sonata without fastening Eduardo's seatbelt). In addition,

evidence showing that states have enacted mandatory seatbelt laws

could be relevant to the foreseeability issue because the jury

conceivably could factor the existence of this legal duty into its

determination whether Hyundai could foresee a parent operating an

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automobile without fastening a child's seatbelt.15 Cf. Bexiga v.

Havir Mfg. Corp., 290 A.2d 281, 286 (N.J. 1972) (stating that

existence of statute concerning appropriate use of product was

relevant but not dispositive to whether use of product in

violation of statute was reasonably foreseeable to manufacturer).

Hyundai, however, does not challenge the district court's

refusal to admit the existence of state seatbelt laws. See supra,

at p. 23 n.15. Rather, it challenges the district court's

refusal to admit evidence that Mr. Cabrera had received two

citations for violating the seatbelt law. We fail to see how

evidence of the citations could demonstrate that Mr. Cabrera's use

of the Sonata on the date of the accident was unforeseeable to

Hyundai. This information was not available to Hyundai when it

sold the Sonata to the Cabreras. See 72 C.J.S. Supp., Prods.

Liab. § 31 n.93 (1975) (stating that only information available to

the seller at the time of the sale is relevant in determining

reasonably foreseeable uses of product). Evidence that Mr.

Cabrera had been cited for failing to seatbelt Eduardo on two

prior occasions suggests only that he likely failed to seatbelt

Eduardo on the date of the accident. But use of Mr. Cabrera's

prior acts for this purpose is prohibited by Fed. R. Evid. 404(b).

15
Hyundai sought to introduce evidence showing the existence
of mandatory seatbelt laws, but the district court excluded this
evidence as more prejudicial than probative. See Fed. R. Evid.
403.

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See Lataille v. Ponte, 754 F.2d 33, 35 (1st Cir. 1985) ("It is

well settled that prior acts may not be admitted to prove that a

person acted in a similar fashion in the case at hand.").16

Hyundai argues alternatively that even if the evidence

of the citations was not admissible to show foreseeability, it was

admissible to impeach Mr. Cabrera's trial testimony. On cross-

examination, Mr. Cabrera testified that he did not remember a

police officer advising him, for safety reasons, that Eduardo had

to be wearing his seatbelt when the car was moving. In response

to this answer, Hyundai sought to impeach Mr. Cabrera's testimony

by questioning him about the two citations. The district court

forbade Hyundai from questioning Mr. Cabrera about the citations

but did permit it to impeach him with his deposition in which he

acknowledged that a police officer had told him that his son had

to be wearing a seatbelt while he was driving.

"When a witness's credibility is at issue, the trial

court may limit cross-examination as long as the court allows

sufficient leeway to establish a reasonably complete picture of

the witness's veracity, bias and motivation." United States v.

Gonzalez-Vazquez, 219 F.3d 37, 45 (1st Cir. 2000) (internal

quotations omitted). Here, the district court chose to permit

16
Fed. R. Evid. 404(b) permits the admission of prior acts
for other purposes such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake or
accident. None of these reasons for admitting the citations is
present here.

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Hyundai to impeach Mr. Cabrera by confronting him with a prior

inconsistent statement from his deposition rather than by allowing

it to inquire about the citations. Such a determination was well

within the district court's considerable discretion to exclude

evidence as overly prejudicial. See Ferrara & DiMercurio v. St.

Paul Mercury Ins. Co., 240 F.3d 1, 6 (1st Cir. 2001). The

district court reasonably concluded that presenting the prior

inconsistent statement sufficiently impeached Mr. Cabrera's

veracity and that presenting the evidence concerning the citations

would have been overly prejudicial to the estate's case. See Fed.

R. Evid. 403.

III. Conclusion

For the reasons stated above, we affirm the judgment in

favor of the Estate of Eduardo Cabrera.

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