823 F.3d 712 (1st Cir. 2016), 15-1466, Quilez-Velar v. Ox Bodies, Inc.

Docket Nº:15-1466, 15-1533
Citation:823 F.3d 712
Opinion Judge:LYNCH, Circuit Judge.
Party Name:BERARDO A. QUILEZ-VELAR; MARTA BONELLI-CABAN; BERARDO A. QUILEZ-BONELLI; CARLOS A. QUILEZ-BONELLI, Plaintiffs, Appellants/Cross-Appellees, v. OX BODIES, INC., Defendant, Appellee/Cross-Appellant
Judge Panel:Before Lynch, Selya, and Lipez, Circuit Judges.
Case Date:May 09, 2016
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

Page 712

823 F.3d 712 (1st Cir. 2016)



OX BODIES, INC., Defendant, Appellee/Cross-Appellant

Nos. 15-1466, 15-1533

United States Court of Appeals, First Circuit

May 9, 2016

As Amended May 11, 2016.

Page 713


José Luis Ubarri, with whom David W. Román and Ubarri & Roman Law Office were on brief, for appellants.

John M. Roche, with whom Kevin S. Taylor, Arron Nesbitt, Taylor Anderson, LLP, Francisco J. Colon-Pagan, Francisco E. Colon-Ramirez, and Colón & Colón, P.S.C. were on brief, for appellee.

Before Lynch, Selya, and Lipez, Circuit Judges.


Page 714

LYNCH, Circuit Judge.

This diversity case arose from the death of Maribel Quilez-Bonelli following an automobile accident involving Maribel's Jeep Liberty and a truck in use by Municipality of San Juan employees that had fitted onto its trash body an underride guard designed by Ox Bodies, Inc. (" Ox Bodies" ). Maribel's family members brought suit in federal court against Ox Bodies, seeking damages for, inter alia, defective design of the underride guard. A jury found Ox Bodies strictly liable for defective design and awarded the plaintiffs damages totaling $6,000,000. By special verdict form, the jury assigned 20% of responsibility for the damages to Ox Bodies, 80% to the Municipality of San Juan, which was not a party in the suit, and 0% to Maribel. The presiding magistrate judge ruled that judgment should enter on the strict liability claim in favor of the plaintiffs and that under Puerto Rico law, Ox Bodies should be held responsible only for 20% of the damages award, which equaled $1,200,000. This appeal and cross-appeal followed.

Ox Bodies appeals the verdict, contending that the court should not have allowed the plaintiffs' expert to testify on an alternative underride guard design, and that absent such testimony, no reasonable jury could have found for the plaintiffs. The plaintiffs appeal the order limiting their recovery, arguing that under Puerto Rico law Ox Bodies should be held " jointly and severally liable to the plaintiff[s] for the totality of the damages" -- the entire $6,000,000 award -- such that " the risk of loss of having to pay the entire judgment without obtaining contribution is borne by the defendant joint tortfeasor, not by the plaintiffs."

We affirm the court's decision to admit the plaintiffs' expert's testimony and so reject Ox Bodies' appeal. On the plaintiffs' appeal, in the absence of clear Puerto Rico law, we certify to the Puerto Rico Supreme Court the question of the extent of Ox Bodies' liability for the damages award.

Page 715


On October 1, 2010, Maribel Quilez-Bonelli, a then 28-year-old married woman and mother, was driving on a highway overpass near the city of San Juan in a 2004 Jeep Liberty with her toddler son when her Jeep collided with a stopped or slowly moving truck in use by Municipality of San Juan employees. The truck bore an underride guard near its rear that had been designed by Ox Bodies. The front of Maribel's Jeep hit the truck from behind and underrode the truck's trash body such that the truck penetrated the Jeep's passenger compartment and struck Maribel, lacerating her head and face. Maribel died from resulting injuries on October 6, 2010.

Maribel's family members, Berardo A. Quilez-Velar, Marta Bonelli-Caban, Berardo A. Quilez-Bonelli, and Carlos A. Quilez-Bonelli1 (collectively " Quilez" ), brought suit in a Puerto Rico court and in federal court.2 In a Puerto Rico trial court, Quilez filed an amended complaint on November 1, 2011, alleging negligence and seeking damages from, inter alia, the Commonwealth of Puerto Rico, the Puerto Rico Highway and Transportation Authority, Integrand Assurance Company (" Integrand" ), and the Municipality of San Juan. The Municipality of San Juan and Integrand brought a third-party complaint for indemnification or contribution against, inter alia, Ox Bodies and its parent company, Truck Bodies & Equipment International, Inc. On May 16, 2014, the Municipality of San Juan, through its insurer, deposited with the Puerto Rico court its maximum policy limit, $500,000, for potential distribution if found liable. The Puerto Rico court ordered that the funds be distributed to the plaintiffs and dismissed the Municipality of San Juan from suit. Quilez expressly represented to this court that " [n]o settlement agreement was ever executed and [Quilez] granted no release [to] or assumed any liability" from the Municipality of San Juan or its insurer. Ox Bodies conceded this point at oral argument, no document in the record establishes otherwise, and so we accept Quilez's representation.

On March 20, 2013, Quilez filed an amended complaint in its diversity action in federal district court against Ox Bodies, its parent company, and other defendants, for defective design and negligence under Puerto Rico law. Ox Bodies and its parent company brought a third-party claim for contribution and/or indemnification against, inter alia, the Municipality of San Juan. On May 16, 2014, the Municipality of San Juan notified the federal court that it had deposited $500,000 that day with the Puerto Rico court. On September 4, 2014, the federal court dismissed the Municipality of San Juan from the suit, without objection from Ox Bodies. Quilez-Velar v. Ox Bodies, Inc., No. CIV. 12-1780, 2014 WL 4385418, at *2, *3 (D.P.R. Sept. 4, 2014), reconsideration denied, No. CIV. 12-1780, 2014 WL 4656649 (D.P.R. Sept. 17, 2014). At the time of this appeal, the only remaining defendant is Ox Bodies.

On January 26, 2015, Ox Bodies filed a pre-trial motion in limine to exclude the testimony of Quilez's expert, Perry Ponder, arguing that " Mr. Ponder's report is devoid of any scientific analysis or calculations

Page 716

that would support" his conclusion that his proposed alternative underride guard design " would have been [a] safer design in the instant accident," and that his opinions should be excluded under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).3 Ox Bodies supported its motion with excerpts from Ponder's deposition and expert report, but it did not request that Ponder testify at a Daubert hearing.4 Quilez opposed the motion.

After reviewing both parties' submissions and relevant discovery materials, the magistrate judge, presiding pursuant to 28 U.S.C. § 636, denied the motion to exclude Ponder's testimony. Quilez-Velar v. Ox Bodies, Inc., No. CIV. 12-1780, 2015 WL 418151, at *7 (D.P.R. Feb. 1, 2015). The magistrate judge acknowledged Ox Bodies' argument that Ponder " did not perform specific tests or calculations in the course of his analysis," but found, first, that Ox Bodies failed to " show that these specific tests must have been carried out to provide a foundation for Ponder's opinions," and second, that upon " review[ing] Ponder's report, . . . its conclusions are well-explained, and its use of crash-test data appears appropriate." Id.

At trial, when Quilez moved to qualify Ponder as an expert, Ox Bodies requested voir dire, which was initially conducted in front of the jury and during which Ponder acknowledged that he did not crash-test his proposed alternative design and that none of his " rear underride guard designs" had ever been adopted by tilt or dump bed manufacturers. Ox Bodies conceded that Ponder was qualified as an accident reconstructionist but renewed its objection to Ponder's testifying about an alternative design for an underride guard. The court permitted further questioning by both parties outside the presence of the jury, spanning more than nine pages of transcript, before ultimately ruling that Ponder was qualified to testify about an alternative underride guard design.

Following a 12-day trial, the jury returned a verdict finding Ox Bodies strictly liable to Quilez for defective design. In the magistrate judge's March 3, 2015, memorandum and order, damages were apportioned as described earlier. Quilez-Velar v. Ox Bodies, Inc., No. CIV. 12-1780, 2015 WL 898255, at *1-3 (D.P.R. Mar. 3, 2015).


Ox Bodies appeals the admission of Ponder's testimony regarding a feasible safer alternative design, arguing that without Ponder's testimony no reasonable jury could have found it liable. " Under Puerto Rican tort law governing design defect claims, if the plaintiff proves that 'the product's design is the proximate cause of

Page 717

the damage,' the burden shifts to the defendant to prove that 'the benefits of the design at issue outweigh the risk of danger inherent in such a design.'" Quintana-Ruiz v. Hyundai Motor Corp., 303 F.3d 62, 69 (1st Cir. 2002) (quoting Aponte Rivera v. Sears Roebuck de P.R., Inc., 98 TSPR 12, 1998 TSPR No. 12, 144 P.R. Dec. 830, 840 n.9, 1998 Juris P.R. No. 12 (1998), 1998 P.R.-Eng. 324486 n.9, 1998 WL 198857 n.9). Here, the court instructed the jury that if it found that the plaintiffs met their burden, then " [i]n deciding whether the benefits outweigh the risks," it should consider a number of factors, including " [t]he feasibility of an alternative safer design at the time of manufacture." Neither party contests this instruction.5

Ponder's expert report pointed to two key deficiencies in Ox Bodies' guard design: first, " [a]pproximately the outside 16 inches on each side of the rear of the [Ox Bodies] truck is left without any underride guarding at all," and second, " the guard is not sufficiently braced against impacts" because " [t]he outside span of the horizontal...

To continue reading