Aktiengesellschaft v. Roth

• Decision Date: 14 April 2011
• Docket Number: 52496.,Nos. 50262,s. 50262
• Citation: 252 P.3d 649,127 Nev. Adv. Op. 11
• Parties: BAYERISCHE MOTOREN WERKE AKTIENGESELLSCHAFT; and BMW of North America, Inc., Appellants,v.Alyson ROTH; and Jennifer E. Stapleton, Respondents.Bayerische Motoren Werke Aktiengesellschaft and BMW of North America, Inc., Appellants,v.Alyson Roth; and Jennifer E. Stapleton, Respondents.
• Court: Nevada Supreme Court

252 P.3d 649

127 Nev. Adv. Op. 11

BAYERISCHE MOTOREN WERKE AKTIENGESELLSCHAFT; and BMW of North America, Inc., Appellants,

v.Alyson ROTH; and Jennifer E. Stapleton, Respondents.Bayerische Motoren Werke Aktiengesellschaft and BMW of North America, Inc., Appellants,

v.Alyson Roth; and Jennifer E. Stapleton, Respondents.

Nos. 50262

52496.

Supreme Court of Nevada.

April 14, 2011.

Lewis & Roca LLP and Daniel F. Polsenberg and Heidi J. Parry Stern, Las Vegas; Law Offices of Greg W. Marsh and Greg W. Marsh, Las Vegas; Bowman and Brooke, LLP, and Paul G. Cereghini and Curtis J. Busby, Phoenix, AZ, for Appellants.Mainor Eglet Cottle and Robert Cottle and Robert T. Eglet, Las Vegas, for Respondent Roth.Dennett Winspear, LLP, and Gina Gilbert Winspear and Ryan L. Dennett, Las Vegas, for Respondent Stapleton.Before the Court En Banc.

OPINION

By the Court, PICKERING, J.:

This is an appeal from an order granting a new trial in a tort case involving a single-car rollover. The injured passenger, respondent Alyson Roth, obtained a $5.9 million judgment against the driver, respondent Jennifer Stapleton, but lost on her product defect/crashworthiness claim against the car's manufacturer, appellant Bayerische Motoren Werke (BMW). The district court granted Roth a new trial against both BMW and Stapleton, and BMW appeals pursuant to NRAP 3A(b)(2).

The district court granted the new trial based on its finding that BMW's counsel repeatedly violated a pretrial order in limine. The order in limine grew out of Nevada's seatbelt statute. This statute requires adults riding in cars to wear seatbelts but adds that “A violation of [the statute is] not a moving traffic violation [and m]ay not be considered as negligence [or] misuse or abuse of a product or as causation in any [civil] action.” NRS 484D.495(4). Because Roth claimed that she was wearing her seatbelt yet was ejected and suffered grave injury due to defects in the car's safety restraint system, the district court permitted BMW to defend with evidence and argument that Roth had not, in fact, been wearing her seatbelt. However, the court hedged this permission with a limiting instruction that told the jury it could consider the seatbelt evidence only in “evaluating [Roth's] claim[s] against BMW that the subject vehicle was defective and unreasonably dangerous,” not “for any other purpose.” The district court found BMW's counsel went out of these bounds in voir dire, opening statement, and closing argument, committing prejudicial misconduct that merited a new trial under Lioce v. Cohen, 124 Nev. 1, 174 P.3d 970 (2008).

We reverse. For violation of an order in limine to constitute attorney misconduct requiring a new trial, the order must be specific, the violation must be clear, and unfair prejudice must be shown. The standards of review established in Lioce apply. Here, the order did not limit the seatbelt evidence that could be introduced, only the arguments that could be made about that evidence. The order's parameters were far from clear—as is Nevada law, generally, concerning seatbelt evidence in a crashworthiness case—yet Roth did not object to any alleged violations by BMW of the order in limine until closing argument. Applying Lioce's strict standards, we cannot say that the unobjected-to violations amounted to plain error, or that the two objected-to violations involved misconduct so extreme that the objection and admonishment did not remove its prejudicial effect. In reaching this conclusion, we reject as error the district court's legal determination that Roth's motion in limine acted as a continuous objection and hold instead that, for violation of an order in limine to constitute objected-to misconduct under Lioce, the complaining party must make a contemporaneous objection when the asserted violation occurs.

I.

A.

The accident occurred in Clark County, Nevada. Roth and Stapleton were driving across country in Roth's 1987 BMW 528e. Stapleton was driving, and Roth was sleeping in the front passenger seat with her seat back partially reclined. Traveling at an estimated speed of between 75 and 90 mph, the car strayed onto the shoulder, swerved back across the highway, decelerating, and rolled into the desert at a trip speed of 36 mph. The car rolled two and one-half times before coming to rest on its roof. During the rollover, Roth was ejected. She survived but suffered a severe spinal cord injury that rendered her a paraplegic. Stapleton's injuries were minor.

Roth sued both Stapleton and BMW. She proceeded to trial on claims of negligence against Stapleton and strict product liability against BMW. Roth made no claim that the BMW caused the accident. Rather, Roth alleged that driver error caused the accident and that, although she was wearing her seatbelt, defects in the BMW's safety restraint system allowed her to be thrown from the car. These defects made the car less crashworthy and caused greater injuries than an ordinary consumer who was properly restrained should expect to suffer in an accident like this.

Roth and BMW had completely opposite theories of how Roth came to be ejected. Roth and Stapleton testified that Roth was wearing her seatbelt. Roth's experts accepted this testimony as fact. They concluded that multiple defects in the car allowed her to be ejected out the rear passenger door after the car had rolled twice. In their view, the passenger side B–pillar (the roof support between a car's front and rear side windows) separated from the roof rail during the rollover, which both deformed the geometry of the seatbelt system and popped the rear door open. When this happened, Roth slipped underneath her suddenly slack seatbelt, over her reclined seat, and out the rear door.

BMW disputed Roth's theory that she was ejected out the rear door as inconsistent with the physics of the accident. It maintained that the physical evidence showed that Roth was not wearing her seatbelt and was ejected out the front passenger window before the vehicle began its second roll.¹ BMW's experts theorized that debris caught the latch on the rear passenger door, causing it to open on the final roll, which in turn separated the B–pillar from the roof rail as the car pitched onto the open door. However, they argued the B–pillar failure was irrelevant, since by then Roth had already been ejected out the front passenger side window.

Trial lasted almost a month. The jury found that Stapleton had been negligent and caused Roth's injuries, awarding Roth $5.9 million against Stapleton. However, the jury returned a defense verdict as to BMW. Answering special interrogatories, it marked “no” to Question No. 1, which asked: “Was the subject vehicle defective?” Given this answer, the verdict form directed the jury to skip the questions that followed as to BMW. It thus did not answer Question No. 4, which asked: “Was the defect in the subject vehicle a proximate cause of the damages or injuries to Alyson Roth?”

B.

In the motion in limine underlying this appeal, Roth asked for “an Order prohibiting BMW, its attorneys and witnesses from any argument, opinion or even mentioning any information that would imply that Alyson Roth was not wearing her seat belt at the time of the subject incident.” Roth sought this relief even though, as her motion in limine acknowledged, her claim against BMW was that she was wearing her seatbelt and the car's safety restraint system failed. Her argument was that she should be allowed to testify that she was wearing her seatbelt but that BMW should be prohibited from presenting evidence or argument to the contrary.

Roth based her motion in limine on Nevada's seatbelt statute, now codified as NRS 484D.495. Subsection 1 of NRS 484D.495 makes it “unlawful to drive a passenger car manufactured after ... January 1, 1970, unless it is equipped with at least two shoulder-harness-type safety belt assemblies for use in the front seating positions,” while subsection 2 mandates that any person “driving, and any passenger who [i]s 6 years of age or older ... shall wear a safety belt if one is available.” Roth's motion relied on subsection 4 of NRS 484D.495, which reads in full as follows:

A violation of subsection 2:

(a) Is not a moving traffic violation under NRS 483.473.[ ²]

(b) May not be considered as negligence or as causation in any civil action or as negligent or reckless driving under NRS 484B.653.

(c) May not be considered as misuse or abuse of a product or as causation in any action brought to recover damages for injury to a person or property resulting from the manufacture, distribution, sale or use of a product.

Submitted in connection with the motion in limine were excerpts from the depositions of Roth and Stapleton, who both testified that Roth had her seatbelt on, and expert reports that previewed the competing theories Roth and BMW would offer at trial to explain her ejection. Roth confirmed that her case theory was that the safety restraint system, including the seatbelt, was defective. BMW argued that NRS 484D.495(4) did not by its terms—and constitutionally could not—prohibit evidence of seatbelt nonuse in a crashworthiness case seeking damages for enhanced injuries due to alleged defects in a car's safety restraint system. It insisted that, “[t]o defend against plaintiff's allegations of defective seatbelt design and other crashworthy defects, BMW must be permitted to demonstrate that if plaintiff was not wearing her seatbelt, her allegations of design defect with respect to the seat belt are moot.”

The district court largely agreed with BMW. Its written order:

ORDERED, ADJUDGED, AND DECREED that as plaintiff raises a claim of defect relating to the seat belts in the subject vehicle, in order for plaintiff to demonstrate the seatbelt was defective, plaintiff must show that the seat belt was used at the time of the accident. Therefore, the BMW defendants must be permitted to present evidence of seat belt non-use. Accordingly, plaintiffs ...