Hisrich v. Volvo Cars of North America, 99-3426

• Decision Date: 21 June 2000
• Docket Number: No. 99-3426,99-3426
• Citation: 226 F.3d 445
• Parties: (6th Cir. 2000) Thomas H. Hisrich, Administrator of the Estate of Diana Zhang, Plaintiff-Appellant, v. Volvo Cars of North America, Inc.; Volvo North America Corporation,Defendants-Appellees. Argued:
• Court: U.S. Court of Appeals — Sixth Circuit

Page 445

226 F.3d 445 (6th Cir. 2000)

Thomas H. Hisrich, Administrator of the Estate of Diana Zhang, Plaintiff-Appellant, v. Volvo Cars of North America, Inc.; Volvo North America Corporation,Defendants-Appellees.

No. 99-3426

UNITES STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

Argued: June 21, 2000

Decided and Filed: August 31, 2000

Appeal from the United States District Court for the Northern District of Ohio at Akron. No. 95-01080--Patricia A. Gaughan, District Judge. [Copyrighted Material Omitted] James A. Lowe, LOWE, EKLUND & WAKEFIELD CO., L.P.A., Cleveland, Ohio, for Appellant. Hugh J. Bode, REMINGER & REMINGER CO., L.P.A., Cleveland, Ohio, for Appellees.

Before: MERRITT, GUY, and COLE, Circuit Judges.

COLE, J., delivered the opinion of the court, in which MERRITT, J., joined. GUY, J. (pp. 457), delivered a separate opinion concurring in part and dissenting in part.

OPINION

R. GUY COLE, JR., Circuit Judge.

Plaintiff Thomas Hisrich, administrator of the estate of Diana Zhang, filed this products liability suit against defendants, Volvo Cars of North America, Inc. and Volvo North America Corp. (collectively "Volvo"), alleging defect in Volvo's airbag system. Zhang was a front-seat passenger in a 1993 Volvo 850 GLT ("Volvo 850"), which was involved in a low-speed collision. The Volvo 850's airbag deployed, striking and killing six-year-old Zhang. Plaintiff alleged that the Volvo 850's airbag system was defective in both its design and manufacture and in its warnings and instructions. The jury returned a verdict for Volvo, which plaintiff appeals, claiming that the district court erred by failing to instruct the jury on both the failure-to-warn defect standard and the consumer-expectation defect standard for products liability under Ohio law. For the following reasons, we REVERSE the judgment of the district court and REMAND for a new trial.

I. Background

The events in this case arise from an April 22, 1993, accident in which a Volvo 850 driven by Ke Ming Li struck the rear end of a 1986 Volkswagen Golf. Li was driving home when she failed to stop as the Volkswagen in front of her slowed to make a left turn. Li engaged her brakes, but the Volvo 850 struck the rear end of the Volkswagen at low speed, causing the Volvo 850's driver and front-passenger airbags to deploy. Li's six-year-old daughter, Zhang, was in the front-passenger seat of the Volvo 850 and was not wearing seat belt restraints. As the passenger-seat airbag deployed, the airbag and the airbag's module cover forcefully struck Zhang in the head and upper portion of her body, propelling the unrestrained child into the interior roof of the vehicle. Zhang died two days after the accident as a result of her injuries. Although Zhang was not wearing seat restraints, the parties stipulate that if the airbag had not deployed, Zhang would not have sustained her fatal injuries.

Plaintiff brought this diversity action,¹ pursuant to 28 U.S.C. § 1332, seeking compensatory and punitive damages for Zhang's wrongful death from Volvo for the defective design, manufacture and warnings or instructions pursuant to Ohio Rev. Code Ann. §§ 2307.74-2307.77 (Anderson 1998). Prior to trial, plaintiff indicated to the defendants and the court that the defective warning or instruction claim pursuant to § 2307.75 would not be submitted to the jury, assuming that such evidence was not developed at trial. Plaintiff, however, did not amend his complaint which sufficiently pleaded the defective warnings claim.

The jury trial began on February 22, 1999. Plaintiff presented evidence concerning the design and testing of the Volvo's airbag system. In addition, plaintiff also produced evidence concerning Volvo's knowledge of the risk to unbelted children and small adults from airbag deployment. At the close of evidence, plaintiff requested a jury instruction for defective warning or instruction pursuant to Ohio Rev. Code Ann. § 2307.76 (Anderson 1998), based on the evidence developed at trial. The trial court denied plaintiff's requested instruction, finding that the evidence did not support the instruction. Specifically, the court found that defendants had rebutted the presumption that Li would have heeded the warnings or instructions. The district court also rejected plaintiff's proposed jury instruction on the consumer-expectation test for determining a design defect pursuant to Ohio Rev. Code Ann. § 2307.75 (Anderson Supp. 2000).² The court held that "airbags in passenger automobiles are not a subject to which consumers could have reasonable expectations."

The case proceeded to the jury with the instructions limited to the risk-benefit test for product defect, omitting the failure-to-warn test and consumer-expectation test. The jury returned a verdict for defendants on March 1, 1999, which the district court entered on March 3, 1999. Plaintiff filed a timely notice of appeal on March 29, 1999.

II. Standard of Review

Plaintiff contends that he is entitled to a new trial because the district court erred by failing to give plaintiff's requested jury instructions. Federal law governs our standard of review in diversity cases. See Gafford v. General Elec. Co., 997 F.2d 150, 166 (6th Cir. 1993). This court "reviews a district court's refusal to give requested jury instructions under an abuse of discretion standard." King v. Ford Motor Co., 209 F.3d 886, 897 (6th Cir. 2000). We define an "abuse of discretion" as "a definite and firm conviction that the trial court committed a clear error of judgment." Bowling v. Pfizer, Inc., 102 F.3d 777, 780 (6th Cir. 1996). Although trial courts have broad discretion in framing jury instructions, state law determines the substance of jury instructions in a diversity action, while federal procedural law governs questions regarding the propriety of the instructions. See King, 209 F.3d at 897 (citing Persian Galleries, Inc. v. Transcontinental Ins. Co., 38 F.3d 253, 257 (6th Cir. 1994)). The federal court, sitting in diversity, applies the same law as would be applied by the Ohio state courts³. See Erie R.R. v. Tompkins, 304 U.S. 64, 78 (1938).

We review "jury instructions as a whole in order to determine whether the instructions adequately inform the jury of relevant considerations and provide a basis in law for aiding the jury to reach its decision." King, 209 F.3d at 897 (internal quotations and alterations omitted). A "district court's refusal to give a jury instruction constitutes reversible error if: '(1) the omitted instructions are a correct statement of the law; (2) the instruction is not substantially covered by other delivered charges; (3) the failure to give the instruction impairs the requesting party's theory of the case.'" Webster v. Edward D. Jones & Co., L.P., 197 F.3d 815, 820 (6th Cir. 1999) (quoting Sutkiewicz v. Monroe County Sheriff, 110 F.3d 352, 361 (6th Cir. 1997)). "A judgment may be reversed only if the instructions, viewed as a whole, were confusing, misleading, or prejudicial." Beard v. Norwegian Caribbean Lines, 900 F.2d 71, 72-73 (6th Cir. 1990).

III. Failure-to-Warn Jury Instruction

Plaintiff contends that the court improperly denied his requested jury instructions regarding the adequacy of Volvo's warnings and instructions. Plaintiff asserts that because Ohio Rev. Code Ann. § 2307.76 and the applicable jury instructions, 2 Ohio Jury Instructions §§ 351.03, 351.11 (2000), permit a finding that a product is defective by reason of inadequate warning or instruction, the court failed to follow Ohio substantive law. Defendants contend, however, that plaintiff, withdrew the failure-to-warn defect claim at trial, failed to provide evidence that the warnings were inadequate, and failed to show causation between the inadequate warnings or instructions and plaintiff's use of the product. Defendants' first argument is that plaintiff waived the failure-to-warn claim, while the remaining arguments essentially assert that plaintiff failed to establish the elements of a failure-to-warn claim. Accordingly, we address the plaintiff's alleged waiver and the requirements for a failure-to-warn claim pursuant to § 2307.76.

A. Waiver

With respect to the defendants' waiver argument, we find that plaintiff did not waive or abandon the properly pleaded failure-to-warn claim. Although plaintiff did not include the failure-to-warn instruction in his trial brief or proposed jury instructions, he requested this instruction at the close of evidence. The district court declined to provide plaintiff's proposed jury instruction, but found on the record that the jury instruction was "timely requested" and considered it on the merits. Despite defendants' arguments of prejudice and abandonment, the court did not find that the claim had been waived in reaching the merits of the proposed instruction. Moreover, defendants cite no authority which indicates that plaintiff has waived this claim by failing to give notice in the trial brief⁴. Thus, we find that plaintiff did not waive his failure-to-warn jury instruction claim and that the claim is properly before this court.

B. Failure-to-Warn Requirements

Defendants contend that plaintiff failed to establish a failure-to-warn claim. The Ohio legislature has codified products liability law with respect to defects due to inadequate warnings or instructions. See Ohio Rev. Code Ann. § 2307.76(A)(1). In pertinent part, the Ohio statute provides that:

(1)[A product] is defective due to inadequate warning or instruction at the time of marketing if, when it left the control of its manufacturer, both of the following applied:

(a)The manufacturer knew or, in the exercise of reasonable care, should have known about a risk that is associated with the product and that allegedly caused harm for which the claimant seeks to recover compensatory damages;

(b)The manufacturer failed to provide the warning or instruction that a manufacturer exercising reasonable care would have provided concerning...