REVISED November 19, 2007
United States Court of Appeals
IN THE UNITED STATES COURT OF APPEALS Fifth Circuit
FOR THE FIFTH CIRCUIT
FILED
November 15, 2007
Charles R. Fulbruge III
No. 05-41723 Clerk
BRIAN WRIGHT, INDIVIDUALLY & AS NEXT FRIEND AND HEIRS AT LAW
OF CADE WRIGHT, DECEASED; LISA WRIGHT, INDIVIDUALLY AND AS
NEXT FRIEND AND HEIRS AT LAW OF CADE WRIGHT, DECEASED,
Plaintiffs-Appellants,
versus
FORD MOTOR COMPANY,
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of Texas
Before GARWOOD, BARKSDALE, and GARZA, Circuit Judges.
GARWOOD, Circuit Judge:
In this Texas law diversity suit, plaintiffs-appellants, Brian
Wright and Lisa Wright, appeal the take nothing judgment in favor
of defendant-appellee Ford Motor Company, in their product
liability wrongful death and survival action for the death of their
three year old son Cade Wright. Appellants alleged claims of
strict liability for marketing defect and design defect respecting
the third party owned and operated Ford 2001 XLT Expedition which
backed over Cade Wright. The trial court granted summary judgment
for Ford on the marketing defect claim and the jury found for Ford
on the design defect claim.
Appellants raise four claims of error. They assert that the
district court erred (1) by instructing the jury under TEX. CIV.
PRAC. & REM. CODE § 82.008(a) & (b) concerning the vehicle’s
compliance with relevant federal safety standards, (2) by granting
Ford’s motion for summary judgment on their marketing defect claim,
(3) by excluding evidence of their expert’s testing, and (4) by
allowing certain testimony of Ford’s expert.
Ford, in addition to defending the district court’s referenced
rulings, further argues that the district court erred in two other
rulings which, if corrected, would provide alternate grounds to
affirm the judgment. Ford argues in this connection that the
district court erred, first, in denying its motion for judgment as
a matter of law, and, second, in denying Ford’s challenge to the
testimony of appellants’ expert witness.
We affirm the judgment below and find it unnecessary to
address Ford’s mentioned alternative grounds for affirmance.
Facts and Proceedings Below
2
This case emerges from the horribly tragic accident that
claimed the life of three-year-old Cade Wright.
On June 30, 2003, the Wrights took their young son, Cade, to
a snowcone stand in Groves, Texas. As appellants’ brief states,
“Brian [Wright] parked his truck to the left and slightly behind an
[2001 Ford] Expedition XLT owned by Robin and Darren McCutcheon .
. . such that the passenger door of the [Wright’s] truck was
approximately parallel to the rear bumper of the Expedition.” The
Wrights’ truck was parked approximately 40 to 60 feet from the
snowcone stand. The parking lot was crowded and there was no
organized manner of parking. The lot was not lined, so customers
for the snowcone stand parked in any area of the lot where there
was room in what could be characterized as a random, haphazard
fashion.
While the Wrights were parking their truck, Darren McCutcheon
was waiting in line at the snowcone stand to purchase his family’s
snowcones while Robin McCutcheon remained in the Expedition with
their two young children. Brian Wright soon joined the snowcone
line, carrying Cade in his arms, while Lisa Wright remained in the
truck. After Brian received the first snowcone in his order, he
placed Cade on the ground and gave him the snowcone.1 Cade then
1
Evidence presented at trial conflicted as to whether Brian Wright allowed
Cade to walk several times back and forth through the parking lot between the
snowcone stand and the family’s truck or whether Brian held Cade in his arms the
entire time, until allowing him to walk alone back to the truck. It is
undisputed that Cade was allowed, at least one time, to walk unaccompanied back
to the truck through the busy parking lot.
3
began to walk alone through the parking lot to his mother waiting
in the truck. Brian signaled to Lisa that Cade was on his way to
the family truck but Lisa did not see the signal and did not
realize Cade was walking toward her through the parking lot. Brian
then turned back to pay for the snowcones once he saw Cade walk
between the truck and the McCutcheons’ Expedition.
During this same time, the McCutcheons were preparing to leave
the parking lot since Darren had returned with the snowcones.
Robin, the driver, placed the Expedition in reverse, checked her
rearview and side mirrors, and then took her foot off the brake
pedal to begin backing out of her parking area without
accelerating. In a matter of seconds, the McCutcheons both heard a
“thump” and, realizing she had hit something, Robin immediately
braked and placed the Expedition in drive, moving forward a few
feet.
Darren and Robin McCutcheon exited the vehicle and, upon
reaching the rear of the driver’s side of the Expedition, realized
Robin had backed over Cade, who was lying on the pavement dead,
crushed by the Expedition’s tire. At this time, Lisa Wright had
also heard the “thump,” and opened the door of her truck to see
Cade’s dead body. The Expedition’s left rear bumper had struck
Cade approximately at his shoulder blades, throwing him face down
into the parking lot; the Expedition’s left rear tire then rolled
over Cade, killing him.
4
Darren McCutcheon had purchased the Expedition from Energy
Country Ford in Port Arthur, Texas, in July 2001 as a new vehicle.
Though he knew the reverse sensing system was available as an
option on the Expedition, labeled as a “reverse/rear parking
aide/assist or back-up alarm,” he chose not to have that particular
option installed.2 On January 8, 2004, the Wrights instituted this
diversity action in the district court below against Ford asserting
products liability and negligence claims. On May 23, 2005, the
district court granted in part Ford’s December 29, 2004 Motion for
Summary Judgment, granting Ford judgment as a matter of law with
regard to the Wrights’ claims for manufacturing and marketing
defects based on a theory of strict products liability or
negligence. The district court allowed the Wrights’ design defect
claim to proceed to trial under both a strict products liability
and a negligence theory.
The Wrights’ July 1, 2005, Second Amended Complaint alleged,
inter alia: that the McCutcheons’ Expedition “had a large and
unreasonably dangerous blind spot immediately behind the vehicle
and was not equipped with any of the many viable and economically
feasible safety devices, including back-up alarms, which were
available on other Ford S.U.V.’s at the time”; that Ford should
have included the reverse sensing system as mandatory standard
2
The Wrights contend that Ford created the ultrasonic reverse sensing
system because it was aware of the dangers of blind spots behind vehicles, where
a driver "is virtually blind to small objects . . . such as dogs, bicycles, or
children." The parties disagree whether such a warning, assuming the system
detected Cade, would have actually saved Cade's life.
5
equipment on all Expedition models; and, on that basis, Ford should
be held negligent and strictly liable for defects in design,
manufacture, and marketing of the Expedition.
Before the case went to jury, the Wrights withdrew their
negligence claim. The jury then returned a verdict against the
Wrights on their design defect claim, responding “no” to the first
interrogatory which asked “was there a design defect in the 2001
Ford Expedition at the time it left the possession of Ford Motor
Company that was a producing cause of the occurrence in question?”.
The remaining interrogatories were not answered as they were
submitted conditionally on an affirmative answer to the first.
Final judgment was entered on July 22, 2005, and the Wrights timely
filed their Notice of Appeal.
Discussion
Jury instruction on compliance with federal safety standards
We review properly preserved claims of jury instruction error
for abuse of discretion using a two-part inquiry, giving the
district court discretion to fashion jury instructions. The
Wrights first “must demonstrate that the charge as a whole creates
‘substantial and ineradicable doubt whether the jury has been
properly guided in its deliberations.’” Flores v. Cameron County,
Tex., 92 F.3d 258, 262 (5th Cir. 1996); EEOC v. Manville Sales
Corp., 27 F.3d 1089, 1096 (5th Cir. 1994). “Second, even if the
6
jury instructions were erroneous, we will not reverse if we
determine, based upon the entire record, that the challenged
instruction could not have affected the outcome of the case.”
Flores, 92 F.3d at 262.
The only issue to reach the jury was the Wrights’ design
defect claim. The Wrights claim the district court erred in
instructing the jury to rebuttably presume that the Ford Expedition
was not defectively designed, pursuant to Texas Civil Practice and
Remedies Code § 82.008. Section 82.008 provides:
“(a) In a products liability action brought against a product
manufacturer . . . there is a rebuttable presumption that the
product manufacturer . . . is not liable for any injury to a
claimant caused by some aspect of the . . . design of a
product if the product manufacturer . . . establishes that the
product’s . . . design complied with mandatory safety
standards or regulations adopted and promulgated by the
federal government, or an agency of the federal government,
that were applicable to the product at the time of manufacture
and that governed the product risk that allegedly caused harm.
(b) The claimant may rebut the presumption in Subsection (a)
by establishing that:
(1) the mandatory federal safety standards or regulations
applicable to the product were inadequate to protect the
public from unreasonable risks of injury or damage; or
(2) the manufacturer, before or after marketing the
product, withheld or misrepresented information or
material relevant to the federal government's or agency's
determination of adequacy of the safety standards or
regulations at issue in the action.” TEX. CIV. PRAC. & REM.
CODE § 82.008.
Ford claims it complied with the relevant safety standard governing
the risk at issue—Federal Motor Vehicle Safety Standard No. 111,
7
“Rearview Mirrors”(FMVSS 111).3 49 C.F.R. § 571.111 (1998). FMVSS
111 addresses rearview mirror performance placement in order to
protect the public from backing into deaths and injuries due to
limited rearview vision. Therefore, Ford claims it is entitled to
the presumption of no defect provided by section 82.008(a).
The judge instructed the jury that the presumption was
applicable and that it could be rebutted if the Wrights established
that the federal standard was inadequate to protect the public. The
jury instruction at issue stated:
“You are instructed that Ford Motor Company complied with
a mandatory federal safety standard or regulation
existing at the time of manufacture that was applicable
to the product and that governed the product risk that
allegedly caused harm and, therefore, is presumed not to
be liable for the injuries to claimants. The claimants
may rebut the presumption by establishing that the
mandatory federal safety standard or regulations
applicable to the product were inadequate to protect the
public from unreasonable risks of injury or damage.”
The Wrights contend that the jury instruction was erroneous
for two reasons: (1) the purported federal standard, Federal Motor
Vehicle Safety Standard No. 111 (FMVSS 111),4 does not govern the
3
FMVSS 111 provides standards regarding rearview mirrors in vehicles,
providing:
"S1. Scope. This standard specifies requirements for the performance
and location of rearview mirrors.
S2. Purpose. The purpose of this standard is to reduce the number of
deaths and injuries that occur when the driver of a motor vehicle
does not have a clear and reasonably unobstructed view to the rear.
S3. Application. This standard applies to passenger cars,
multipurpose passenger vehicles, trucks, buses, schoolbuses and
motorcycles." 49 C.F.R. § 571.111.
4
49 C.F.R. § 571.111.
8
rear sensing system with which they argue the Expedition should
have been equipped; and (2) the presumption that a vehicle is not
defective if it complies with FMVSS is rebuttable and should not be
conveyed to the jury once a plaintiff produces evidence rebutting
it.
(a) The Wrights first argue that the applicability of FMVSS
111 is confined by its scope, rearview mirror performance and
placement, and this case concerns the absence of a reverse sensing
system—thereby rendering the section 82.008 presumption instruction
erroneous since section 82.008 is only triggered when a federal
statute actually applies to the defect at issue. To support their
arguments, they point to the legislative history of section 82.008,
in which there is some discussion that the statute does not apply
to a defect not asserted. Rearview mirrors are not the defect
here—the lack of a reverse sensing system combined with an overly
large rear blind spot are. Ford maintains, and we agree, that the
risk that caused the harm in this case is precisely what FMVSS 111
covers, as stated in section 571.111 S2—its “purpose” is to reduce
the number of injuries and deaths “that occur when the driver of a
motor vehicle does not have a clear and reasonably unobstructed
view to the rear.” See note 3 supra.
When we interpret a Texas statute, we follow the same rules of
construction that a Texas court would apply—and under Texas law the
starting point of our analysis is the plain language of the
statute. See International Truck and Engine Corp. v. Bray, 372
9
F.3d 717, 722 (5th Cir. 2004) (“When we interpret state law . . .
we . . . apply the law as the state’s highest court would.”);
National Liability and Fire Ins. Co. v. Allen, 15 S.W.3d 525, 527
(Tex. 2000) (“In construing a statute, our objective is to
determine and give effect to the Legislature’s intent [and] first
look at the statute’s plain and common meaning[, presuming] that
the Legislature intended the plain meaning of its words.”). As the
Texas Supreme Court described in Fitzgerald v. Advanced Spine
Fixation Sys., Inc., 996 S.W.2d 864, 866 (Tex. 1999):
“There are sound reasons we begin with the plain language
of a statute before resorting to rules of construction.
For one, it is a fair assumption that the Legislature
tries to say what it means, and therefore the words it
chooses should be the surest guide to legislative intent.
Also, ordinary citizens should be able to rely on the
plain language of a statute to mean what it says.
Moreover, when we stray from the plain language of a
statute, we risk encroaching on the Legislature's
function to decide what the law should be.”
The Wrights claim that the legislative history of section
82.008 establishes that the emphasis is upon whether the particular
defect claimed was governed by a federal safety standard and not
the risk arising from that defect. However, section 82.008's
statutory language is clear, and we see no reason to address the
legislative history as urged by the Wrights.5 Section 82.008
clearly provides for a rebuttable presumption if the product at
5
Indeed, a closer look at the legislative history indicates that it is not
clear that the legislators distinguished between "defect" and "risk."
Regardless, the statute says "risk," and if the language of a statute is clear,
we do not need to reach legislative history—particularly when the legislative
history does not necessarily conflict with the plain reading of the statute.
10
issue—here, Ford’s 2001 XLT Expedition—was manufactured in
compliance with federal regulations that “governed the product risk
that allegedly caused harm.” TEX. CIV. PRAC. & REM. CODE § 82.008(a)
(emphasis added).
It is a much closer question, however, whether FMVSS 111
governed the product risk asserted in this case. The risk that
caused the harm and forms the basis of the Wrights’ suit is the
rear blindspot of the Expedition. Indeed, several times in the
Wrights’ experts’ reports and their lawyer’s opening statement to
the jury it is asserted that the allegedly defective design feature
that caused the tragic accident at issue was the Expedition’s
“rather substantial blind area behind it” and “there is a huge
blind spot behind this Expedition.” The testimony of their expert
Geoffrey Mahon also reflects that the product risk they asserted
was that arising from the unreasonably dangerous blind spot behind
the Expedition when it was not equipped with the non-federally
required ultrasonic reverse sensing system.
FMVSS 111, last updated in 1998, expressly states that it
addresses rear blindspot risks (see note 3, supra). On November
27, 2000, the National Highway Traffic Safety Administration
(NHTSA) published, under the heading “Federal Motor Vehicle Safety
Standard No. 111, ‘Rearview Mirrors’; Rear Visibility Systems”, an
Advance Notice of Proposed Rulemaking (Notice), 65 Fed. Reg.
70,681, that indicated the possibility of amending FMVSS 111 to
require further rear visibility systems, such as cross-view mirrors
11
or the ultrasonic reverse sensing system, rear video cameras or
other such devices on commercial trucks with a gross vehicle weight
of 10,000 pounds or more to reduce pedestrian deaths caused by
backing vehicles.
In a passing comment regarding possible preemption issues, the
Notice indicated that NHTSA had previously “stated that the
requirements in [FMVSS] 111, ‘Rearview Mirrors’, do not address the
visibility of the area directly and immediately behind a vehicle.
Accordingly, Standard No. 111 does not preempt any State from
requiring rear cross-view mirrors on vehicles.” 65 Fed. Reg.
70,681. The Notice indicated, as well, that a Washington statute
requiring commercial vehicles up to 5.5 meters in length to be
equipped with driver-warning backup alerts (as urged here for the
Expedition) or rear-mounted cross-view mirrors was not preempted by
FMVSS 111 due to the afore-quoted NHTSA’s interpretation of FMVSS
111.
This preemption matter mentioned by the Notice, however, does
not conclusively indicate that FMVSS 111 does not govern the
product risk of which the Wrights complain. Section 82.008(a) is
not limited to preemptive regulations, and, in fact, appears to
assume non-preemptive regulations (as compliance with a preemptive
regulation would of itself normally be determinative regardless of
whether the claimant established under section 82.008(b)(1) that it
was “inadequate to protect the public”). See also 49 U.S.C. §
301.03(e) (compliance with federal motor vehicle safety standards
12
under 49 U.S.C. § 301.01 “does not exempt a person from liability
at common law”). However, the statutes and measures mentioned by
the Notice address entirely different issues than the one present
here—such as Washington’s statute requiring the additional
blindspot-reducing equipment on large commercial vehicles. Also,
FMVSS 111 has a section discussing requirements of motorcycles and
passenger cars under the weight of the 10,000-pound vehicles
addressed by the November 2000 Notice. Indeed, the Notice
specifically says that reverse sensing systems installed on
passenger vehicles are, as the technology stood as of the date of
the Notice, of questionable help in terms of detecting people in
the vehicles’ blind spots.6 The Notice states that rear sensing
systems are “relatively expensive technologies that do not
presently reliably detect pedestrians” and that “there are not yet
commercially available systems that can reliably detect pedestrians
and children to the rear of the vehicle.” 65 Fed. Reg. 70,681. The
Notice then continues on to limit its applicability, stating: “The
agency [NHTSA] will reevaluate the need for and practicability of
means of avoiding fatal backing crashes as technology progresses
and performance is improved. However, public comment is
specifically invited on the agency’s current intentions of limiting
6
The Notice states:
“Several commonly used vans and passenger cars are now available
with optional rear object detection systems that are advertised and
intended for use as parking aids—not pedestrian detectors. Ford, GM,
BMW and Mercedes-Benz have devices that are claimed to reliably
detect when the vehicle is about to back into a pole, but not when
it is about to back into a person.” 65 Fed. Reg. 70,681.
13
the requirements [of cross view mirrors] to straight trucks with a
GVWR between 10,000 and 26,000 pounds.”7 Id. The federal agency
chose to not even pursue amending FMVSS 111 to require such systems
on passenger vehicles because it concluded that the ultrasonic
reverse sensing systems were not yet sufficiently reliable to
detect pedestrians. The goals were admirable but the technology
was simply not there yet.
Indeed, the fact that the November 2000 proposal centered upon
amending FMVSS 111 to address the same risk of which the Wrights
complain in a similar manner as they suggest is a further
indication that this federal regulation governs the risk that
allegedly caused the harm. This is sufficient to come within
section 82.008. The product risk addressed by FMVSS 111 is and was
that of “deaths and injuries that occur when the driver of a motor
vehicle does not have a clear and reasonably unobstructed view to
the rear.” When consideration was given to further expanding the
vehicle requirements to meet this risk, the November Notice
addressed amending FMVSS 111 to expand its requirements designed to
address that same risk. So far as applicable to passenger
vehicles, it was decided not to impose additional requirements to
address that risk, because the technology was not then available.
As to such vehicles, that product risk would be governed by, and
only by, the requirements of FMVSS 111 as it then stood. The 2001
7
The vehicles forming the topic of the Notice are over twice as large as
the some 4,000-pound Expedition.
14
Ford XLT Expedition met those requirements. As to the larger
vehicles, further consideration would be given to amending FMVSS
111 to add further requirements addressing that same product risk.
We hold that FMVSS 111 applies to the product risk asserted in this
case. Accordingly, the Wrights’ objection to the jury charge on
the basis that FMVSS 111 did not so apply was properly overruled by
the district court.
(b) The Wrights next argue that even if FMVSS 111 sufficed to
trigger the presumption provided by section 82.008, they rebutted
that presumption because they produced at trial some evidence that
would support a jury finding that the standard was inadequate to
protect the public from unreasonable risk of injury or damage.
Therefore, they argue the presumption should not have been included
in the jury instructions at all. We decline to find reversible
error on this issue.
The Wrights did not object to the jury instruction on this
ground at trial—they only objected on the grounds previously
addressed, that FMVSS 111 did not govern the defect asserted.
“A party may not object to an instruction on one ground at
trial and then attempt to rely on a different ground on appeal.”
Coastal Distributing v. NGK Spark Plug Co., 779 F.2d 1033, 1039
(5th Cir. 1986). See also, e.g., 9A Wright & Miller, Federal
Practice and Procedure: Civil 2d § 2554 at 426 (“A party may not
state one ground when objecting to an instruction to the jury and
attempt to rely on a different ground for an objection on appeal or
15
on a motion for a new trial”). Where a claimed ground of
instructional error raised on appeal was not properly preserved
below we may reverse only for “plain error,” which requires not
only error, but also that the error “was clear or obvious,” that
“substantial rights were affected” and that, consistent with our
discretion whether to correct any plain error, “‘not correcting the
error would seriously affect the fairness, integrity, or public
reputation of judicial proceedings.’” Texas Beef Group v. Winfrey,
201 F.3d 680, 689 (5th Cir. 2000) (citations omitted). See also,
e.g., Rizzo v. Children’s World Learning Centers, Inc., 213 F.3d
209, 213 (5th Cir. 2000) (en banc). The plain error standard is
not met here.
To begin with, it is by no means “clear or obvious” that the
mere introduction of evidence which would support (though not
legally compel) a factual finding that the applicable federal
standards (here, those of FMVSS 111) “were inadequate to protect
the public from unreasonable risks of injury or damage” (as
provided in section 82.008(b)(1)) suffices of itself to rebut the
“rebuttable presumption” established under section 82.008(a) and
cause that presumption to “disappear” from the case so as to be an
improper subject of jury instruction.8 It is true that under Texas
8
We assume, arguendo only, that the evidence suffices to support a finding
that the standards of FMVSS 111 “were inadequate to protect the public from
unreasonable risks of injury or damage” in respect to the product risk here at
issue. However, we hold that the evidence in this respect does not establish any
such inadequacy as a matter of law; on the evidence here the presence of any such
inadequacy would be at most a fact question.
We further note that there is no evidence (and neither side has contended
16
law presumptions are “generally” treated as being of the so called
“Thayer” variety, namely presumptions which shift only the burden
of production of evidence, which “disappear” from the case once
evidence is introduced sufficient to support a finding contrary to
the presumed fact, and which do not shift the burden of persuasion.
See, e.g., General Motors Corp. v. Saenz, 873 S.W.2d 353, 359 (Tex.
1993) (common law “presumption that adequate warnings on products
will be headed”). However other Texas presumptions – often
referred to as “Morgan” presumptions – do not so disappear and do
operate to shift the burden of persuasion. See, e.g., Trevino v.
Ortega, 969 S.W.2d 950, 953, 960 (Baker, J., concurring) (Tex.
1998); Bogart v. Somer, 762 S.W.2d 577 (Tex. 1988); In Re R.D.Y.,
51 S.W.3d 314, 321 (Tex. App. Hou. [1st] 2001; pet. denied); K.B.
v. N.B., 811 S.W.2d 634, 642 (Tex. App. SA, 1991). See also, e.g.,
Steven Goode et al, Guide to the Texas Rules of Evidence, 1 Texas
Practice Series § 301.2 (2002).9
that there is) of any misrepresentation to, or withholding by Ford of relevant
information from, the federal agency in connection with the relevant safety
standards or regulations at issue, as addressed in § 82.008(b)(2).
9
“A Thayer-type presumption shifts only the burden of
production to the opponent of the presumption. . . . the
opponent must produce enough evidence so that a
reasonable juror could find the non-existence of the
presumed fact. If the opponent meets this burden, the
presumption disappears from the case . . . Thayer-type
presumptions . . . are frequently referred to as
‘bursting bubble’ presumptions . . . . Many courts and
scholars believe that the Thayer approach significantly
undervalues presumptions . . . . Once led by Professor
Morgan, they argue that a presumption should shift the
burden of persuasion to the party opposing it. . . .
Given both the complexity of the task and the vast and
proliferating number of presumptions in Texas, both
17
We have been cited to no Texas appellate court opinion
directly addressing this aspect of the section 82.008 presumption
(that section applies only to suits filed after September 1, 2003).
Given that the section 82.008(a) presumption is a statutory
one, the language of the statute would appear to control its
operation. The statute provides that the “claimant may rebut the
presumption in subsection (a) by establishing that . . . [the
applicable federal standards] were inadequate.” Section 82.008(b)
(emphasis added). “Establish” connotes something more than simply
introducing some evidence from which a factfinder might – or might
not – find that which is to be “established.” If, as here, the
assertedly rebutting evidence is not such as to require as a matter
of law that the federal standards be held inadequate, but rather
presents a fact question in that respect, then, in a jury tried
case, it appears logical to conclude that the statute proceeds on
statutory and court-made, any effort to catalog
presumptions in an evidence code would be futile. The
drafters of the Texas rules were forced to choose
between the only two realistic alternatives: either opt
for one approach to presumptions to the exclusion of the
others or leave the matter to the courts for a case-by-
case consideration. They chose the latter.
Consequently, the Texas Rules of Evidence say nothing
about presumptions; Article III is left blank. The
effect of any presumption must be determined by looking
to the relevant case law and statute, if any.
Many presumptions in Texas are given the minimal,
Thayer-type effect. Indeed, it has been sometimes said
to be the predominant approach to presumptions in Texas.
. . . Other presumptions are accorded greater
force. Some of these shift the burden of persuasion and
can be overcome only if the opponent convinces the jury
of the non-existence of the presumed fact by a
preponderance of the evidence; still others require the
opponent to present clear and convincing evidence.” Id.
at 92, 93, 95, 96 (footnotes omitted).
18
the assumption that any such fact question as whether the
presumption has been rebutted will be submitted to the jury.
We conclude that it is not “clear or obvious” that the
presumption provided for by section 82.008(a) and (b) is a Thayer
type – rather than a Morgan type – presumption, and accordingly the
Wrights’ contention, not properly preserved below, that the trial
court erred by failing to treat the section 82.008 presumption as
a Thayer-type (rather than a Morgan-type) presumption, does not
present any plain error. Further, there is ample evidence (apart
from any section 82.008 presumption) to sustain the verdict and
certainly no clear indication that the verdict would probably have
been different absent the section 82.008 instruction, and
accordingly, even if the minimum standards to authorize reversal
under the plain error standards were met, we would not exercise our
discretion to do so because it does not appear that failure to
address the claimed error would seriously affect the fairness,
integrity or public reputation of judicial proceedings.
Summary Judgment: Marketing Defect Claim
Grants of summary judgment are reviewed de novo, applying the
same standard as the district court. Tango Transp. v. Healthcare
Fin. Servs. LLC, 322 F.3d 888, 890 (5th Cir. 2003). Summary
judgment is proper if no genuine issue of material fact exists and
the moving party is entitled to judgment as a matter of law.
FED.R.CIV.P. 56(c). We view the evidence in a light most favorable
to the non-moving party. EMCASCO Ins. Co. v. American Intern.
19
Specialty Lines Ins. Co., 438 F.3d 519, 523 (5th Cir. 2006).
Further, in order to avoid summary judgment,
“the non-movant must go beyond the pleadings and come
forward with specific facts indicating a genuine issue
for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 324,
106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). A genuine issue of
material fact exists when the evidence is such that a
reasonable jury could return a verdict for the
non-movant. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Summary
judgment is appropriate, however, if the non-movant
‘fails to make a showing sufficient to establish the
existence of an element essential to that party’s case.’
Celotex, 477 U.S. at 322-23, 106 S.Ct. 2548.” EMCASCO,
438 F.3d at 523.
“[A] marketing defect occurs when a defendant knows or should
know of a potential risk of harm presented by a product but markets
it without adequately warning of the danger or providing
instructions for safe use.” Sims v. Washex Machinery Corp., 932
S.W.2d 559, 562 (Tex. App.–Houston [1st Dist.] 1995, no writ). To
sustain their marketing defect claim, the Wrights had to show the
following: (1) a risk of harm inherent in the product or which may
arise from the intended or reasonably anticipated use of the
product; (2) the product supplier actually knew or should have
reasonably foreseen the risk of harm at the time the product was
marketed; (3) the product contains a marketing defect; (4) the
absence of a warning renders the product unreasonably dangerous to
the ultimate user or consumer of the product; and (5) the failure
to warn must constitute a causative nexus in the product user’s
injury. Id.
20
In granting summary judgment in favor of Ford on the Wrights’
marketing defect claim, the district judge determined there was no
evidence of causation, noting that the Expedition’s owner’s manual
presents information on the available reverse sensing system option
and on the substantial blind spot behind the vehicle. In finding
that no additional or different warning would have caused a
different result as to this accident, the district judge mainly
relied upon the testimony of the Expedition’s purchaser, Darren
McCutcheon. Darren McCutcheon testified that when he bought the
vehicle, he knew of the vehicle’s rear blind spot and knew of the
reverse sensing system and its availability. He also testified
that when he bought the Expedition, he knew what options he wanted
on an Expedition before he set foot in the automobile dealership—it
did not matter to him what anyone told him or what information was
in the manual concerning the reverse sensing system. He was quite
clear in saying he would have bought the vehicle without the
reverse sensing system no matter what warning he had then
received.
Under Texas law, there is a presumption that an adequate
warning would have been followed.10 The presumption, however, is
a Thayer-type presumption which disappears if evidence is presented
that the warning would not have been followed. The burden then
10
We will assume arguendo that this common law presumption applies in a
case such as this where a third party is the plaintiff and not the purchaser.
See, e.g., Khan v. Velsicol Chemical Corp., 711 S.W.2d 310, 317 (Tex. App.—
Dallas 1986, writ ref’d n.r.e.).
21
shifts back to the plaintiffs to show that the warning would have
been followed—otherwise the plaintiffs are subject to a directed
verdict. General Motors Corp. v. Saenz, 873 S.W.2d 353, 359 (Tex.
1993). And, “[t]here is no presumption that a plaintiff” . . . or,
presumably, other person . . . “who ignored instructions that would
have kept him from injury would have followed better instructions.”
Id. at 359.
We agree with the district court’s grant of summary judgment.
Ford presented evidence through the testimony of the McCutcheons
that they would not have heeded any warning if presented. To
survive summary judgment, the Wrights had to present evidence that
the purchasers would have bought the reverse sensing system option
if they had been warned—a burden the Wrights did not satisfy here.
We affirm the district court’s grant of summary judgment to Ford on
this claim.
Expert Testimony Rulings
We review district court rulings on the admission of expert
testimony for abuse of discretion. Moore v. Ashland Chemical, Inc.,
151 F.3d 269, 274 (5th Cir. 1998)(en banc).
1) Expert witness for the Wrights
The district judge excluded certain testimony from the
Wrights’ primary expert witness, Dr. Geoffrey Mahon, who was
brought to testify that had the Expedition been equipped with the
reverse sensing system, it would have more likely than not
prevented the accident that claimed the life of Cade Wright.
22
Specifically, the district judge excluded from evidence “sanity
testing”11 conducted for Mahon by The Irwin Company, an accident
reconstruction company, that attempted to show that an Expedition
equipped with the reverse sensing system would have detected Cade
Wright and alerted Robin McCutcheon to his presence in her
vehicle’s blind spot. To conduct this test, Irwin located a person
who owned an Expedition equipped with the reverse sensing system,
traveled to their home with his three-year-old nephew, and tested
the system by placing his nephew in various positions behind the
Expedition to test its response.
As a result of the exclusion of Irwin’s tests, Mahon was not
allowed to testify about the results of the tests or its role in
shaping his expert opinion. According to the Wrights, this allowed
Ford’s attorneys to cross-examine Mahon “aggressively” concerning
his lack of testing conducted by him personally supporting his
theory that the reverse sensing system was capable of detecting a
three-year-old child, creating the impression for the jury that his
theory was without basis and easily disregarded.
The Wrights have not provided us with a record upon which we
may determine whether or not the exclusion of Irwin’s tests was an
abuse of discretion. Our past decisions have clearly indicated
11
As clarified at oral argument, “sanity testing” is an engineering term
used to describe basic testing conducted to test the performance of a system in
real-world situations. However, the “sanity testing” conducted in this particular
instance was adjudged to be of such poor, chaotic quality it led the district
judge to call it an “insanity” test due to it having “more of an insanity kind
of environment than a sanity.”
23
that “‘excluded evidence is sufficiently preserved for review when
the trial court has been informed as to what counsel intends to
show by the evidence and why it should be admitted, and this
court has a record upon which we may adequately examine the
propriety and harmfulness of the ruling.’” Dell Computer Corp. v.
Rodriguez, 390 F.3d 377, 387 (5th Cir. 2004) (emphasis added)
(quoting United States v. Jimenez, 256 F.3d 330, 343 (5th Cir.2001)
(noting that “[t]he latter rule has particular force when the trial
court makes clear that it does not wish to hear further argument on
the issue.”)). The Wrights failed to include in the record to this
court any documentary evidence of the tests. Irwin made no written
notations of the results of his tests and reported the results of
the sanity testing to Mahon over the telephone in an unrecorded
conversation. The only documentation of the tests consists of a
series of photographs and a home video with such poor sound quality
that wind noise apparently blocked the sound of the sensors
alerting to detection of objects (and a child) placed in the
vehicle’s blind spot. Furthermore, even if the sensors could be
heard in the video, it appears that the position of the camera made
it impossible to gauge distances. Alas, none of this documentary
evidence was included in the appellate record for us to review
ourselves to adequately examine the propriety of the trial court’s
ruling.
The manner in which the tests were performed, as disclosed in
the video documentation of the testing, which was before the
24
district judge but has not been included in the record on appeal,
left the district judge so incredulous as to state, “I think my
daughter’s high school science fair projects are more scientific
than this . . . .” Indeed, after viewing the video documentation of
the test, the district judge described it by saying, for example:
“to say I wasn’t impressed is an understatement”; “It wasn’t at all
the quality experiment that I would expect”; “it just didn’t seem
to pass the scientific smell test to me”; “my children and I could
have done this test and we could have made it look better . . . my
husband could do better”; the video “is, in my estimate, an
embarrassment to the scientific community . . . not scientific at
all . . . totally unscientific”; and, finally, “That’s not a
scientific piece of documentation, in my opinion.”
Nothing in the record before us allows us to conclude that the
district court abused its discretion in excluding the results of
this testing or opinions based thereon. We affirm the district
court’s exclusion of Irwin’s sanity testing.
2) Expert witness for Ford
Ford retained expert witness Dr. Michelle Vogler to testify
regarding the relative safety of the McCutcheon’s 2001 Expedition
in order to contest the Wrights’ claims that the Expedition was
unreasonably dangerous when not equipped with a reverse sensing
system. The Wrights argue that the district court erred by
allowing Vogler to testify regarding the blind spots of vehicles
not substantially similar to the McCutcheon’s Expedition, including
25
vehicles manufactured after the vehicle in question. The Wrights
contend this testimony was “unfairly prejudicial and harmful,” and
comparing the blind spot of the McCutcheon’s 2001 Expedition to
those of cars manufactured in 2004 “gave the jury the improper and
erroneous evidence that the 2001 Expedition compared favorably with
other vehicles manufactured in 2001.”
Vogler testified that the 2001 Expedition’s rear blind spot
was not unusually large when compared to many passenger cars, sold
in 2001 and after. The point of the expert testimony was to
present evidence that countered the Wrights’ conclusory allegations
that the 2001 Expedition’s blind spot was unreasonably dangerous
due to being unusually large. We see no abuse of discretion in the
district judge’s admission of this testimony, and we accordingly
reject appellants’ complaint in this respect.
Conclusion
For the foregoing reasons, the judgment below is affirmed.
AFFIRMED.
26
Wright Ex Rel. Wright v. Ford Motor Co.
Court: Court of Appeals for the Fifth Circuit
Date filed: 2007-11-19
Citations: 508 F.3d 263
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