461 F.3d 557 (5th Cir. 2006), 05-50431, Muth v. Ford Motor Co.

Docket Nº:05-50431.
Citation:461 F.3d 557
Party Name:Barry William MUTH, Sr., Individually and as Next Friend of Barry William Muth, Jr., Ashley Diana Muth, and Evan Paul Muth, minors; Dee Anne Muth, Individually and as Next Friend of Barry William Muth, Jr., Ashley Diana Muth, and Evan Paul Muth, minors, Plaintiffs-Appellees, v. FORD MOTOR COMPANY; et al., Defendants, Ford Motor Company, Defendant-A
Case Date:August 17, 2006
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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461 F.3d 557 (5th Cir. 2006)

Barry William MUTH, Sr., Individually and as Next Friend of Barry William Muth, Jr., Ashley Diana Muth, and Evan Paul Muth, minors; Dee Anne Muth, Individually and as Next Friend of Barry William Muth, Jr., Ashley Diana Muth, and Evan Paul Muth, minors, Plaintiffs-Appellees,

v.

FORD MOTOR COMPANY; et al., Defendants,

Ford Motor Company, Defendant-Appellant.

No. 05-50431.

United States Court of Appeals, Fifth Circuit.

Aug. 17, 2006

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[Copyrighted Material Omitted]

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Thomas Ross Harkness (argued), Scott Alan Ozmun, Cynthis K. Stewart, Whitehurst, Harkness, Ozmun & Archuleta, Austin, TX, for Plaintiffs-Appellees.

Craig Alan Morgan (argued), Austin, TX, Michael W. Eady, Thompson, Coe, Cousins & Irons, Austin, TX, for Defendant-Appellant.

Appeal from the United States District Court for the Western District of Texas.

Before GARWOOD, HIGGINBOTHAM and CLEMENT, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

A jury returned a nearly $9 million judgment against Ford Motor Company for injuries sustained by Barry William Muth, Sr. while traveling in a 1996, four-door Ford Crown Victoria. Ford appeals, challenging the sufficiency of the evidence, evidentiary rulings, and the conduct of the trial judge. We affirm.

I

After finishing a pick-up basketball game, plaintiff Barry W. Muth, Sr. and Julius Wineglass, both Majors in the United States Army, got in a 1996, four-door Ford Crown Victoria and headed back to Escon village, site of a U.S. Army base, in Riyadh, Saudi Arabia. Wineglass was driving with Muth in the front passenger seat, both men wearing seatbelts. Traveling along a four-lane highway, they approached a right-hand curve going approximately ten miles per hour over the speed limit. Loose in the turn, Wineglass lost control of the car and ran it into a three-foot high "Jersey barrier" separating the two sides of the highway. Although the precise movement of the car was disputed, generally the left front wheel climbed the side of the barrier, causing the car to slide along the barrier for a short distance and, ultimately, to flip, landing on its roof and coming to rest about 209 feet from where it initially hit the barrier. Muth sustained a subluxation injury of the C5-C6 vertebrae in his spinal cord, leaving him a quadriplegic with only limited use of his arms and hands. Wineglass received minor injuries and is not party to this litigation.

Muth and his family sued Ford in federal district court, bringing negligence and strict product liability claims. Muth alleged two design defects: first, that the 1996 Ford Crown Victoria contained "inadequate rollover/roof crush protection"; and second, that the 1996 Ford Crown Victoria contained an "inadequate occupant restraint system." During the seven day trial, Muth focused on the roof strength defect, contending that a stronger and economically practical roof would have prevented the injury. Keith Friedman, Muth's expert witness, testified that the roof was defective because it collapsed twelve to fifteen inches on the passenger side. Friedman testified that increasing the thickness of the steel in several parts of the roof structure could have reduced the "roof collapse" to three inches for $9 per car or two inches for $31 per car.

Ford did not dispute that a stronger roof would be feasible. Rather, Ford contended that a stronger roof would do little, if anything, to prevent injuries in rollover accidents. According to Ford, during a rollover accident, the body drops toward the ground--in other words, toward the

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roof. Because a normal seatbelt system allows the body to drop five inches, which is more than the normal three-to-four inches of clearance between head and roof, the only way to prevent injuries in rollover accidents is to use a five-point, NASCAR-style seatbelt with crotch strap, an impossibility in commercial vehicles. In short, Ford contended that a stronger roof would not help prevent head-and-neck injuries in rollover accidents.

Attempting to prove this counterintuitive point, Ford relied on data from two crash tests: an early 1980s series from General Motors using Chevy Malibu sedans ("the Malibu test"); and a 2000-2001 series from Ford using the Controlled Rollover Impact System ("the CRIS test"). Both tests used slow-motion video and high-speed cameras to record the precise movements of cars and dummies during rollovers. Although the district court allowed Ford's expert witnesses to discuss the data and conclusions drawn from the tests, the court excluded the demonstrative evidence--video and photograph--illustrating those results.

At the close of all the evidence, Muth withdrew his negligence claim and only submitted his design defect claim to the jury. The jury answered "yes" to the question of whether there was "a design defect in the Crown Victoria at the time it left the possession of Ford Motor Company that was a producing cause of the injury" and awarded Muth and his family nearly $9 million in damages. Ford timely appealed. We have jurisdiction under 28 U.S.C. § 1291.

II

Ford raises four issues. First, Ford, contending that Muth failed to meet his burden on either theory of design defect, argues that the district court erred when it denied Ford's motion for judgment as a matter of law. Second, Ford contends that even if there was sufficient evidence, the district court erred when it did not ask the jury to unanimously agree on one particular design defect. Third, Ford objects to the exclusion of demonstrative evidence from the Malibu and CRIS tests. Finally, Ford contends that remarks of the trial judge in front of the jury were improper, warranting reversal. We address each in turn.

A

Ford moved for judgment as a matter of law at the close of all the evidence, so our review is de novo. 1 We apply the same legal standard as the district court--that is, judgment as a matter of law will only be granted if "the facts and inferences point 'so strongly and overwhelmingly in the movant's favor that reasonable jurors could not reach a contrary conclusion.' " 2

Ford objects to the sufficiency of the evidence on both theories of design defect. As to the inadequate roof strength, Ford contends that Muth failed in his burden to establish that the vehicle was in substantially the same condition at the time of the accident as it was at the time of manufacture, pointing to evidence suggesting that the windshield had been replaced prior to the accident. As to the inadequate restraint system, Ford contends that Muth failed to establish any safer alternative designs, a requirement imposed by law. We disagree with the former, but agree with the latter.

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1

Although cast as an insufficient evidence charge, Ford's objection to the jury's finding of defective roof strength is really that Muth did not put on sufficient evidence of an essential element in his prima facie case--namely, that he failed to establish that the 1996 Crown Victoria was in substantially the same condition at the time of the accident as it was at the time of manufacture. Muth questions Ford's reading of Texas law, citing to cases placing the burden on the defendant to show that the injury was caused by a substantial alteration in the product.

Ford cites two cases for the proposition that Texas law requires the plaintiff to prove that the product was in substantially the same condition at the time of accident as at the time of manufacture: Uniroyal Goodrich Tire Co. v. Martinez, from the Supreme Court of Texas, which only states that Texas follows Section 402A of the Restatement (Second) of Torts; 3 and Syrie v. Knoll International, from our Court, which reads Section 402A to put the burden on the plaintiff to show that "the product reached the consumer without substantial change in its condition from the time of original sale." 4 But the Restatement says nothing about the burden of proof, 5 and subsequent cases, some cited by Muth, suggest that the burden of showing a substantial alteration in the product lies with the defendant. 6

Both arguments miss the mark. Both arguments focus on the windshield, but we need not resolve who has the burden of proof to show that the vehicle involved in the accident had the same (or a similar) windshield as the vehicle off the assembly line if the windshield played no part in Muth's theory of design defect. We do...

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