Wright v. Ford Motor Co., 05-41723.

Citation508 F.3d 263
Decision Date15 November 2007
Docket NumberNo. 05-41723.,05-41723.
PartiesBrian WRIGHT, Individually & as Next Friend and Heirs at Law of Cade Wright, Deceased; Lisa Wright, Individually and as Next Friend and Heirs at Law of Cade Wright, Deceased, Plaintiffs-Appellants, v. FORD MOTOR COMPANY, Defendant-Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

Brett Scot Thomas (argued), Roebuck & Thomas, Beaumont, TX, for Plaintiffs-Appellants.

Craig Alan Morgan (argued), Austin, TX, Evan Nicholas Kramer, Thompson, Coe, Cousins & Irons, Houston, TX, for Defendant-Appellee.

Appeal from the United States District Court for the Eastern District of Texas.

Before GARWOOD, BARKSDALE and GARZA, Circuit Judges.

GARWOOD, Circuit Judge:

In this Texas law diversity suit, plaintiffs-appellants, Brian Wright and Lisa Wright, appeal the take nothing judgment in favor of defendant-appellee Ford Motor Company, in their product liability wrongful death and survival action for the death of their three year old son Cade Wright. Appellants alleged claims of strict liability for marketing defect and design defect respecting the third party owned and operated Ford 2001 XLT Expedition which backed over Cade Wright. The trial court granted summary judgment for Ford on the marketing defect claim and the jury found for Ford on the design defect claim.

Appellants raise four claims of error. They assert that the district court erred (1) by instructing the jury under TEX. CIV. PRAC. & REM.CODE § 82.008(a) & (b) concerning the vehicle's compliance with relevant federal safety standards, (2) by granting Ford's motion for summary judgment on their marketing defect claim, (3) by excluding evidence of their expert's testing, and (4) by allowing certain testimony of Ford's expert.

Ford, in addition to defending the district court's referenced rulings, further argues that the district court erred in two other rulings which, if corrected, would provide alternate grounds to affirm the judgment. Ford argues in this connection that the district court erred, first, in denying its motion for judgment as a matter of law, and, second, in denying Ford's challenge to the testimony of appellants' expert witness.

We affirm the judgment below and find it unnecessary to address Ford's mentioned alternative grounds for affirmance.

Facts and Proceedings Below

This case emerges from the horribly tragic accident that claimed the life of three-year-old Cade Wright.

On June 30, 2003, the Wrights took their young son, Cade, to a snowcone stand in Groves, Texas. As appellants' brief states, "Brian [Wright] parked his truck to the left and slightly behind an [2001 Ford] Expedition XLT owned by Robin and Darren McCutcheon ... such that the passenger door of the [Wright's] truck was approximately parallel to the rear bumper of the Expedition." The Wrights' truck was parked approximately 40 to 60 feet from the snowcone stand. The parking lot was crowded and there was no organized manner of parking. The lot was not lined, so customers for the snowcone stand parked in any area of the lot where there was room in what could be characterized as a random, haphazard fashion.

While the Wrights were parking their truck, Darren McCutcheon was waiting in line at the snowcone stand to purchase his family's snowcones while Robin McCutcheon remained in the Expedition with their two young children. Brian Wright soon joined the snowcone line, carrying Cade in his arms, while Lisa Wright remained in the truck. After Brian received the first snowcone in his order, he placed Cade on the ground and gave him the snowcone.1 Cade then began to walk alone through the parking lot to his mother waiting in the truck. Brian signaled to Lisa that Cade was on his way to the family truck but Lisa did not see the signal and did not realize Cade was walking toward her through the parking lot. Brian then turned back to pay for the snowcones once he saw Cade walk between the truck and the McCutcheons' Expedition.

During this same time, the McCutcheons were preparing to leave the parking lot since Darren had returned with the snowcones. Robin, the driver, placed the Expedition in reverse, checked her rearview and side mirrors, and then took her foot off the brake pedal to begin backing out of her parking area without accelerating. In a matter of seconds, the McCutcheons both heard a "thump" and, realizing she had hit something, Robin immediately braked and placed the Expedition in drive, moving forward a few feet.

Darren and Robin McCutcheon exited the vehicle and, upon reaching the rear of the driver's side of the Expedition, realized Robin had backed over Cade, who was lying on the pavement dead, crushed by the Expedition's tire. At this time, Lisa Wright had also heard the "thump," and opened the door of her truck to see Cade's dead body. The Expedition's left rear bumper had struck Cade approximately at his shoulder blades, throwing him face down into the parking lot; the Expedition's left rear tire then rolled over Cade, killing him.

Darren McCutcheon had purchased the Expedition from Energy Country Ford in Port Arthur, Texas, in July 2001 as a new vehicle. Though he knew the reverse sensing system was available as an option on the Expedition, labeled as a "reverse/rear parking aide/assist or back-up alarm," he chose not to have that particular option installed.2 On January 8, 2004, the Wrights instituted this diversity action in the district court below against Ford asserting products liability and negligence claims. On May 23, 2005, the district court granted in part Ford's December 29, 2004 Motion for Summary Judgment, granting Ford judgment as a matter of law with regard to the Wrights' claims for manufacturing and marketing defects based on a theory of strict products liability or negligence. The district court allowed the Wrights' design defect claim to proceed to trial under both a strict products liability and a negligence theory.

The Wrights' July 1, 2005, Second Amended Complaint alleged, inter alia: that the McCutcheons' Expedition "had a large and unreasonably dangerous blind spot immediately behind the vehicle and was not equipped with any of the many viable and economically feasible safety devices, including back-up alarms, which were available on other Ford S.U.V.'s at the time"; that Ford should have included the reverse sensing system as mandatory standard equipment on all Expedition models; and, on that basis, Ford should be held negligent and strictly liable for defects in design, manufacture, and marketing of the Expedition.

Before the case went to jury, the Wrights withdrew their negligence claim. The jury then returned a verdict against the Wrights on their design defect claim, responding "no" to the first interrogatory which asked "was there a design defect in the 2001 Ford Expedition at the time it left the possession of Ford Motor Company that was a producing cause of the occurrence in question?". The remaining interrogatories were not answered as they were submitted conditionally on an affirmative answer to the first. Final judgment was entered on July 22, 2005, and the Wrights timely filed their Notice of Appeal.

Discussion

Jury instruction on compliance with federal safety standards

We review properly preserved claims of jury instruction error for abuse of discretion using a two-part inquiry, giving the district court discretion to fashion jury instructions. The Wrights first "must demonstrate that the charge as a whole creates `substantial and ineradicable doubt whether the jury has been properly guided in its deliberations.'" Flores v. Cameron County, Tex., 92 F.3d 258, 262 (5th Cir. 1996); EEOC v. Manville Sales Corp., 27 F.3d 1089, 1096 (5th Cir.1994). "Second, even if the jury instructions were erroneous, we will not reverse if we determine, based upon the entire record, that the challenged instruction could not have affected the outcome of the case." Flores, 92 F.3d at 262.

The only issue to reach the jury was the Wrights' design defect claim. The Wrights claim the district court erred in instructing the jury to rebuttably presume that the Ford Expedition was not defectively designed, pursuant to Texas Civil Practice and Remedies Code § 82.008. Section 82.008 provides:

"(a) In a products liability action brought against a product manufacturer . . . there is a rebuttable presumption that the product manufacturer . . . is not liable for any injury to a claimant caused by some aspect of the . . . design of a product if the product manufacturer . . . establishes that the product's . . . design complied with mandatory safety standards or regulations adopted and promulgated by the federal government, or an agency of the federal government, that were applicable to the product at the time of manufacture and that governed the product risk that allegedly caused harm.

(b) The claimant may rebut the presumption in Subsection (a) by establishing that:

(1) the mandatory federal safety standards or regulations applicable to the product were inadequate to protect the public from unreasonable risks of injury or damage; or

(2) the manufacturer, before or after marketing the product, withheld or misrepresented information or material relevant to the federal government's or agency's determination of adequacy of the safety standards or regulations at issue in the action." TEX. CIV. PRAC. & REM.CODE § 82.008.

Ford claims it complied with the relevant safety standard governing the risk at issue — Federal Motor Vehicle Safety Standard No. 111, "Rearview Mirrors"(FMVSS 111).3 49 C.F.R. § 571.111 (1998). FMVSS 111 addresses rearview mirror performance placement in order to protect the public from backing into deaths and injuries due to limited rearview vision. Therefore, Ford claims it is entitled to the presumption of no defect provided by section 82.008(a).

The judge instructed the jury that the presumption was applicable and that it could be rebutted if the Wrights established that...

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