Montag by Montag v. Honda Motor Co., Ltd.

• Decision Date: 22 January 1996
• Docket Number: No. 94-1353,94-1353
• Citation: 75 F.3d 1414
• Parties: 43 Fed. R. Evid. Serv. 1065, Prod.Liab.Rep. (CCH) P 14,473 The Estate of Diane MONTAG, by and through Michael Montag, her Personal Representative of the Estate; Michael MONTAG, individually, Plaintiff-Appellant, United of Omaha Life Insurance Company, a Nebraska corporation, as Subrogee of The Estate of Diane Montag, Plaintiff-Intervenor-Appellant, v. HONDA MOTOR COMPANY, LTD., a Japanese corporation; American Honda Motor Co., Inc., a California corporation doing business in Colorado; Honda Research & Development Co., Ltd., a Japanese corporation, Defendants-Appellees, Trial Lawyers for Public Justice, Public Citizen, Center for Auto Safety, Motor Voters, Product Liability Advisory Council, Inc., Amici Curiae.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1414

75 F.3d 1414

43 Fed. R. Evid. Serv. 1065, Prod.Liab.Rep. (CCH) P 14,473

The Estate of Diane MONTAG, by and through Michael Montag,

her Personal Representative of the Estate;

Michael MONTAG, individually, Plaintiff-Appellant,

United of Omaha Life Insurance Company, a Nebraska

corporation, as Subrogee of The Estate of Diane

Montag, Plaintiff-Intervenor-Appellant, v. HONDA MOTOR COMPANY, LTD., a Japanese corporation; American

Honda Motor Co., Inc., a California corporation doing

business in Colorado; Honda Research & Development Co.,

Ltd., a Japanese corporation, Defendants-Appellees,

Trial Lawyers for Public Justice, Public Citizen, Center for

Auto Safety, Motor Voters, Product Liability

Advisory Council, Inc., Amici Curiae.

No. 94-1353.

United States Court of Appeals, Tenth Circuit.

Jan. 22, 1996.

William James Barber of William James Barber, P.C., Denver, Colorado (Michael J. Mirabella of Norman & Mirabella, P.C., Lakewood, Colorado, for Plaintiffs-Appellants; and John O. Rauch of Downey, Rauch & Sleeman, P.C., Denver, Colorado, for Plaintiff-Intervenor-Appellant, with him on the briefs), for Plaintiffs-Appellants.

Malcolm E. Wheeler (John R. Trigg and Robert B. Hunter on the brief) of Parcel Mauro, Hultin & Spaanstra, P.C., Denver, Colorado for Defendants-Appellees.

(Kenneth S. Geller, Erika Z. Jones, and John J. Sullivan of Mayer, Brown & Platt, Washington, D.C.; Hugh F. Young, Jr., Product Liability Advisory Council, Inc., Reston, Virginia, on the briefs for Amicus Curiae Product Liability Advisory Council, Inc.)

(Arthur H. Bryant and Leslie A. Brueckner, Trial Lawyers for Public Justice, Washington, D.C., on the briefs for Amici Curiae Trial Lawyers for Public Justice, Public Citizen, Center for Auto Safety, and Motor Voters.)

Before MOORE and McKAY, Circuit Judges, and BRETT, ^* Chief District Judge.

McKAY, Circuit Judge.

Plaintiff Michael Montag and Plaintiff-Intervenor United of Omaha Life Insurance Company ("Plaintiffs") appeal from a judgment against them in this products liability action. Plaintiffs claim that Defendants American Honda Motor Company, Honda Motor Co. Ltd., and Honda R & D Co., Ltd. ("Honda") defectively designed the seat belt in a 1988 Honda Prelude driven by Diane Montag, Mr. Montag's deceased wife. Mrs. Montag was involved in a collision and was thrown from her car despite the fact that she was wearing a seat belt. The jury rendered a verdict for Honda. Plaintiffs now assert that the trial court made various errors during the course of the trial. We affirm for the reasons that follow.

On her way to work one morning, Diane Montag drove her 1988 Honda Prelude onto a railroad crossing. A freight train was approaching the intersection at the same moment and broadsided the Prelude. Although she was wearing her seat belt, Mrs. Montag was thrown from her vehicle. She received serious brain injuries from which she died twenty-one months later.

Plaintiffs do not claim that Honda is responsible for the initial collision with the train. Rather, Plaintiffs assert that but for the defectively designed seat belt, Mrs. Montag would not have been ejected from her car. The seat belt in question was designed to be automatic: when the door opened, the seat belt automatically disengaged; and when the door closed, the seat belt automatically moved into place, securing both torso and waist. The force of the collision with the train caused Mrs. Montag's door to open, and, as a result, the seat belt automatically disengaged allowing Mrs. Montag to be ejected from the car. Plaintiffs claim that such a seat belt system is defective under products liability law.

Plaintiffs present several issues on appeal. First, they claim the trial court erred when it concluded that federal motor safety regulations preempted any claim that an airbag was an available alternative safety design. Second, they claim Honda was negligent per se because it failed to comply with certain federal motor safety standards. Thus, they argue the district court erred when it instructed the jury that the seat belt was presumed not to be defective under Colorado law because Honda had complied with all applicable statutes and regulations. Third, they claim the district court erred when it refused to instruct the jury on the consumer expectations test employed in products liability cases. Fourth, Plaintiffs claim the district court erred when it instructed the jury to compare the negligence of Mrs. Montag with the negligence of Honda under Colorado's comparative fault statute. Finally, they argue the district court made erroneous evidentiary rulings when it allowed Honda to show the jury a film depicting a train-automobile crash, and when the district court restricted the scope of Plaintiffs' lay witness testimony.

I. Federal Preemption

As part of its defective design case, Plaintiffs sought to introduce evidence of a safer, alternative design. Specifically, Plaintiffs intended to show that Honda could have used an alternative restraint system containing, in part, an air bag. Honda filed a motion in limine seeking to exclude the air bag evidence. It argued that federal motor safety regulations preempted Plaintiffs' air bag evidence. The district court agreed and granted Honda's motion. Plaintiffs claim that this decision was erroneous.

We have previously held that 15 U.S.C. § 1392(d) of the National Traffic and Motor Vehicle Safety Act (the "Safety Act"), 15 U.S.C. § 1381 et seq., and Federal Motor Vehicle Safety Standard 208, 49 C.F.R. § 571.208 ("FMVSS" or "Standard" 208) impliedly preempt air bag claims. ¹ Kitts v. General Motors Corp., 875 F.2d 787, 789 (10th Cir.1989), cert. denied, 494 U.S. 1065, 110 S.Ct. 1781, 108 L.Ed.2d 783 (1990). Plaintiffs attempt to circumvent this holding by citing to Cipollone v. Liggett Group, Inc., 505 U.S. 504, 112 S.Ct. 2608, 120 L.Ed.2d 407 (1992). They argue that, under Cipollone, courts may not consider implied preemption where Congress has provided an express preemption clause. Because the Safety Act contains an express preemption clause in § 1392(d), they reason, the Kitts implied preemption holding does not apply. The Supreme Court, however, recently rejected this interpretation of Cipollone. In Freightliner Corp. v. Myrick, --- U.S. ----, 115 S.Ct. 1483, 131 L.Ed.2d 385 (1995), the Court held that the existence of an express preemption provision does not preclude an implied preemption analysis. Id. at ----, 115 S.Ct. at 1488. At best, an express preemption clause supports the inference that no implied preemption exists. Id.

The question remains, then, whether the express preemption clause in the Safety Act precludes an implied preemption analysis in this case. In Myrick, the Supreme Court engaged in an implied preemption analysis of the Safety Act. Although not explicitly stated, the Court clearly believed that the express preemption clause of the Safety Act did not preclude implied preemption analysis. Thus, our holding in Kitts still applies to this case. Plaintiffs were impliedly preempted from presenting airbag evidence.

II. Negligence Per Se

Colorado Revised Statutes § 13-21-403(1)(b) creates a rebuttable presumption that a product is not defective if the manufacturer complied with applicable federal or state regulations. The district court, holding that Honda had met the applicable federal safety standards, instructed the jury as to this presumption. Plaintiffs argue, however, that Honda did not comply with Federal Motor Vehicle Safety Standard 209, 49 C.F.R. § 571.209 ("FMVSS" or "Standard" 209). ² Thus, they argue not only that the district court's instruction was erroneous but also that Honda was negligent per se.

FMVSS 209 S4.1(b) provides:

A seat belt assembly shall provide pelvic restraint whether or not upper torso restraint is provided, and the pelvic restraint shall be designed to remain on the pelvis under all conditions, including collision or roll-over of the motor vehicle.

Because the seat belt on Mrs. Montag's car did not provide pelvic restraint during the collision, Plaintiffs assert that Honda did not comply with FMVSS 209. Honda, on the other hand, argues that FMVSS 208 specifically authorizes the automatic seat belt used in Mrs. Montag's Prelude. Furthermore, they argue that seat belts in compliance with FMVSS 208 are exempt from the requirements of FMVSS 209. Thus, Honda believes it complied with the applicable federal standards.

FMVSS 208 sets forth the various seat belt options manufacturers may use to meet occupant crash protection standards. Specifically, FMVSS 208 S4.5.3 provides:

"[A] seat belt assembly that requires no action by vehicle occupants (hereinafter referred to as an "automatic belt") may be used to meet the crash protection requirements of any option under S4. and in place of any seat belt assembly otherwise required by that option."

Plaintiffs do not contend that Honda's seat belt was not an "automatic belt" within the meaning of FMVSS 208 S4.5.3. Thus, the question becomes whether an automatic seat belt which otherwise complies with FMVSS 208 must also meet the requirements of FMVSS 209 S4.1(b). These two standards are in conflict because of the nature of an automatic seat belt. Automatic belts are designed to release when the car door opens. If the car door opens during a collision, however, the automatic belt still releases. Under these circumstances, the seat belt does not provide pelvic restraint, in direct contravention of FMVSS 209.

Upon further examination of FMVSS 208, we resolve this conflict in favor of Honda. It appears that automatic seat belts complying with FMVSS 208, with certain exceptions, are exempt from the requirements of FMVSS 209. Specifically, FMVSS 208 S4.5.3.4 provides:

An automatic belt furnished pursuant to S4.5.3 that is not required to meet the perpendicular frontal crash protection requirements of S5.1 shall conform to the webbing, attachment hardware, and assembly performance...