Cummings v. General Motors Corp., 060204 FED10, 02-6340

Docket Nº:02-6340
Party Name:Cummings v. General Motors Corp.
Case Date:June 02, 2004
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

GREGORY CUMMINGS; TRACEY CUMMINGS, husband and wife, Plaintiffs - Appellants,



Nos. 02-6340 & 03-6209

United States Court of Appeals, Tenth Circuit

June 2, 2004


Richard L. Denney, (Lydia JoAnn Barrett, Denney & Barrett, P.C., Norman, Oklahoma and Robert R. Robles, Oklahoma City, Oklahoma on the briefs; Richard J. Goralewicz, Turner, Turner, Goralewicz & Dillingham, Oklahoma City, Oklahoma, with him on the briefs), for Plaintiffs - Appellants.

Mary Quinn Cooper, (William S. Leach and Andrew L. Richardson, on the brief), Eldridge, Cooper, Steichen & Leach, P.L.L.C., Tulsa, Oklahoma, for Defendant -Appellee.

Before KELLY, McKAY, and HENRY, Circuit Judges.

KELLY, Circuit Judge.

Gregory and Tracey Cummings brought this suit against General Motors Corporation ("GM") to recover for injuries Mrs. Cummings sustained in an automobile accident involving a 1995 Pontiac Grand Am. The Cummings allege that Mrs. Cummings's injuries resulted from a flawed seat belt system and seat designed by GM, as well as inadequate warnings of the dangers inherent in the product. A jury returned a verdict in favor of GM, and the Cummings appeal, asserting that the court should have directed a verdict in their favor based on the evidence, and that the district court abused its discretion with regard to several discovery rulings. Approximately eight months after the trial, the Cummings filed a motion in the district court for relief under Federal Rule of Civil Procedure 60(b) based on alleged discovery misconduct on GM's part. The district court denied relief, and the Cummings appeal. We have jurisdiction under 28 U.S.C. § 1291 over both appeals and consider them in turn below, affirming in all respects.


Gregory and Tracey Cummings were involved in a car accident on the evening of September 13, 1998 in rural Carter County, Oklahoma. Mr. Cummings was driving a 1995 Pontiac Grand Am with his wife, Tracey, in the front passenger seat. Their children were in the back seat, with the three-month-old in a car seat behind Mrs. Cummings. Mr. Cummings ran a "partially obscured" stop sign at a T-type intersection and drove off the road, through a ditch, and into a field. I Aplt. App. at 191. Although the other passengers sustained only minor injuries, Mrs. Cummings sustained a compression fracture of the third vertebra resulting in paraplegia. I Aplt. Br. at 12.

The Cummings brought this suit against GM, asserting that Mrs. Cummings sustained such severe injuries as a result of the design of the seat belt and the seat, as well as GM's failure to warn. Prior to trial, the parties engaged in multiple discovery disputes, including disputes over the adequacy of responses to requests for production, expert witness designations, depositions, and electronic discovery. See I Aplt. App. at 17-37. These disputes resulted in three motions to compel by the Cummings and several motions for protective orders by GM. The magistrate judge addressed the majority of these disputes in an order dated June 18, 2002, in which the judge denied Plaintiffs' motions, granted Defendant's motions for protective orders, and granted Defendant's their attorney's fees and costs. Id. The district court reviewed the Plaintiffs' motions de novo and affirmed the magistrate's findings in all respects. Id. at 3.

At trial, GM countered the Cummings' claims with evidence that there was no defect in either the seat, the seat belt system, or the warning. See id. at 714-15, 725, 865, 889-90, 1030-32. GM contended that Mrs. Cummings's injuries resulted not from any defect, but rather from a combination of the forces exerted on her during the accident and her position and posture at the time of the accident. Although the Cummings offered evidence that Mrs. Cummings had her seat angled back approximately 25 degrees, kL at 157, 524, GM's experts testified that she was most likely reclined at 40-45 degrees at the time of the accident, kL at 689; sitting slouched in the seat, kL at 686-87, 900-02; and/or turned to attend to the children in the back seat, I Aplee. Supp. App. at 316. The Cummings argued that such a conclusion was impossible because there was a rear-facing child safety seat located behind Mrs. Cummings that prevented her from reclining her seat. GM offered evidence that the child seat was actually installed in a forward-facing direction at the time of the accident, thus allowing the front passenger seat to recline.

At the close of all the evidence, out of the presence and hearing of the jury, both the Cummings and GM moved for judgment as a matter of law. I Aplt. App. at 1041-49. GM made its motion first, moving for judgment as a matter of law with regard to all claims, including the alleged defective seat, seat belt, failure to warn, and punitive damages claims. The Cummings responded to GM's contentions, and then the court directed them to make their motion for judgment as a matter of law. Counsel for the Cummings stated: Your Honor, I would move for judgment as a matter of law on the foreseeable misuse or the so-called misuse defense. Throughout the trial we have had to listen to [General Motors] accuse Mrs. Cummings of reclining the seat. I don't need to tell Your Honor.

Your Honor knows foreseeable misuse is not a defense. No one denies that this is foreseeable misuse of a seat. No one denies that they built the capability into the seat to do it. They knew the risk, that they knew people would be injured if they did that. No one whatsoever denies that in this trial. This jury should be instructed that reclining the seat is not a defense, and that if this Defendant built a recliner seat that is dangerous, this Defendant should be held legally responsible for the consequences. That's the law in Oklahoma.

Id. at 1047-48. The court denied both motions.

The jury returned a verdict for GM, finding GM not liable for any design defect or failure to warn. I Aplee. Supp. App. at 324. The Cummings failed to make any motions following the return of the verdict. Id. at 327. The Cummings filed a timely appeal, asserting that (1) they were entitled to judgment as a matter of law with regard to liability, and (2) the trial court abused its discretion in its rulings on various discovery motions.

One month after the verdict, and after filing the appeal, the Cummings discovered six videos of child safety seat acceleration tests conducted by GM and produced by GM in an unrelated trial. The videos show tests by GM involving child-sized dummies in forward-facing child car seats placed in the back seat. In the videos, the children are thrown from the car seat during various accident simulations. The Cummings argue the tests fall within their prior requests for production and would have demonstrated that it was impossible for Mrs. Cummings to have her seat fully reclined at the time of the accident, as their child would have been injured had the child been in a forward-facing child restraint.

The Cummings did not immediately move for relief upon discovery of the videos. Instead, they waited seven months to file a motion for relief under Federal Rule of Civil Procedure 60(b). The district court, finding the motion both untimely and lacking in support, denied the motion, and the Cummings appeal. The appeals have been consolidated and are addressed jointly below.


A. Preserving Appellate Review of Sufficiency of the Evidence

The Cummings assert the trial court erred in not granting judgment in their favor, arguing that the "[e]vidence of defect and causation presented at trial entitled [them] to judgment as a matter of law." I Aplt. Br. at 26. GM contends that the Cummings have failed to preserve this issue for appeal, stating (1) the Cummings moved for judgment as a matter of law at the close of evidence only on the defense of product misuse and not on liability generally, and (2) the Cummings failed to renew their motion for judgment as a matter of law after the verdict. I Aplee. Br. at 5, 6.

A party challenging the sufficiency of the evidence during a civil trial must make a motion for judgment as a matter of law before the case is submitted to the jury, in accordance with Federal Rule of Civil Procedure 50(a). "If, for any reason, the court does not grant a motion for judgment as a matter of law made at the close of all the evidence, the court is considered to have submitted the action to the jury subject to the court's later deciding the legal questions raised by the motion." Fed. R. Civ. P. 50(b). If the court denies the motion and submits the case to the jury, the party may nevertheless renew its motion after the verdict if the jury finds for the opposing party or fails to reach a verdict. Id.

Because a motion for judgment as a matter of law at the close of evidence and following a verdict are closely intertwined, we consider both in turn. A motion for judgment as a matter of law at the close of the evidence, formerly referred to as a motion for a directed verdict, serves several purposes. Anderson v. United Tel. Co. of Kan., 933 F.2d 1500, 1503 (10th Cir. 1991) (collecting cases). A motion under Rule 50(a) protects the Seventh Amendment right to trial by jury. Such a motion alerts the opposing party to any deficiencies in the case, thereby giving the party an opportunity to rectify any deficiencies prior to the case being submitted to the jury. Id. A motion for judgment as a matter of law also alerts the court to a claim of insufficient evidence before the case is submitted to the jury so the court is not faced with such a claim after the fact when the court's ability to address the motion is limited. Id. Finally, a motion at the close of evidence preserves the issue as a question of law for appeal. Id.

These purposes are met when the moving party...

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