King v. Ford Motor Co.

RECOMMENDED FOR FULL-TEXT PUBLICATION

24 King, et al. v. Ford Motor Co., et al. No. 98-5960 Pursuant to Sixth Circuit Rule 206

ELECTRONIC CITATION: 2000 FED App. 0137P (6th Cir.)

File Name: 00a0137p.06

load limiters and belt loads in the 1992 Hyundai Excel. Ford

had disclosed that its experts would rebut plaintiffs’ proffered

testimony, and Ford claimed that it was unaware prior to trial

as to the nature of Syson’s testimony. UNITED STATES COURT OF APPEALS

The district court squarely rejected this argument, finding FOR THE SIXTH CIRCUIT

that plaintiffs had disclosed the nature of Syson’s testimony _________________

prior to trial. In his report, Syson stated that “a force limiter

;

in the torso belt” was an option available to Ford to improve



its restraint system design. At his deposition, Syson stated CHARLES KING, as



that he would provide exemplars of load limiters during his Administrator of the Estate of



testimony. A year prior to trial, plaintiffs informed Ford that Patti Ann King,



one of those exemplars would be a load limiter used in the No. 98-5960

Hyundai Excel. Despite these disclosures, the district court Plaintiff- Appellee,



found, Ford never divulged prior to trial that it would call any >

witnesses to testify about load limiters in the Hyundai Excel. AMANDA SUE KING, by and 

Ford does not address the above facts in its brief before this 



through her next friend

court nor does it provide any explanation as to why its failure



Charles King; ASSOCIATED

to disclose was justified. It has not demonstrated that the

Intervening 

district court clearly erred. INSURANCE COMPANIES,



Ford next argues that it would simply be unfair to exclude Plaintiffs-Appellees, 

its proffered testimony. We conclude that this is not the case. 

Although it was attempting to present rebuttal testimony, 



v.

Ford’s unexcused failure to disclose that its experts would

testify regarding Hyundai Excel load limiters did not allow 



plaintiffs the opportunity to prepare properly for these FORD MOTOR COMPANY;



witnesses. Furthermore, the district court allowed one Ford MAZDA MOTOR

witness, Michelle Vogler, to testify about the 1992 Hyundai CORPORATION, 

Excel, stating in particular that the Escort and the Excel had Defendants-Appellants. 

the same “chest loads.” The court thus did allow at least a 1

limited response to Syson’s “surprise” testimony. Again,

Ford has not demonstrated that the district court clearly erred. Appeal from the United States District Court

for the Eastern District of Kentucky at London.

VIII. No. 95-00117—Jennifer B. Coffman, District Judge.

For the foregoing reasons, the judgment of the district court Argued: August 6, 1999

is AFFIRMED.

Decided and Filed: April 19, 2000

1

2 King, et al. v. Ford Motor Co., et al. No. 98-5960 No. 98-5960 King, et al. v. Ford Motor Co., et al. 23

Before: BATCHELDER and COLE, Circuit Judges; VII.

MARBLEY, District Judge.*

Ford finally claims that it is entitled to a new trial because

_________________ the district court erred by excluding portions of testimony

from two of Ford’s experts, Roger Maugh and Geoff

COUNSEL Germane. Maugh would have testified that the 1992 Escort

was not defective because it did not use a load limiter in its

ARGUED: E. Duncan Getchell, Jr., MCGUIRE, WOODS, restraint system, and Germane would have testified that belt

BATTLE & BOOTHE, Richmond, Virginia, for Appellants. loads in the 1992 Hyundai Excel, which employed a load

Samuel E. Davies, Barbourville, Kentucky, for Appellees. limiter, were actually higher than the belt loads in the 1992

ON BRIEF: E. Duncan Getchell, Jr., Rosewell Page, III, Ford Escort. The testimony purportedly would have

MCGUIRE, WOODS, BATTLE & BOOTHE, Richmond, demonstrated that load limiters were not feasible for the 1992

Virginia, Bryan Todd Thompson, DINSMORE & SHOHL, Escort. The district court held that the experts’ opinions were

London, Kentucky, for Appellants. Samuel E. Davies, not admissible under Fed. R. Evid. 26 because Ford did not,

Barbourville, Kentucky, for Appellees. within the allotted time window, disclose that the experts

would testify about these matters. This court reviews such a

_________________ ruling for abuse of discretion. See Pedigo v. UNUM Life Ins.

Co., 145 F.3d 804, 807 (6th Cir. 1998).

OPINION

_________________ Fed. R. Evid. 26(a)(2)(B) provides, in part, that a party’s

disclosure regarding an expert witness must “contain a

R. GUY COLE, JR., Circuit Judge. Charles King, complete statement of all opinions to be expressed and the

administrator of the estate of Patti Ann King; Amanda King, basis and reasons therefor.” Fed. R. Evid. 37(c)(1), in turn,

the Kings’ daughter; and the Associated Insurance Companies provides that “[a] party that without substantial justification

(collectively “plaintiffs”), filed this suit against the Ford fails to disclose information required by Rule 26(a) . . . shall

Motor Company and Mazda Motor Corporation (collectively not, unless such failure is harmless, be permitted to use as

“Ford”). Plaintiffs alleged that the passenger restraint system evidence at a trial, at a hearing, or on a motion any witness or

in the 1992 Ford Escort in which Patti Ann King was riding information not so disclosed.” Ford does not contend that,

on August 21, 1994 was defective, causing her death. prior to trial, it disclosed that its experts would testify about

Following a jury verdict in favor of the plaintiffs, Ford raised load limiters in the Hyundai Excel; rather, it contends that it

several grounds for appeal. For the following reasons, we had substantial justification for failing to disclose and that, in

AFFIRM the judgment of the district court. any event, it would be fundamentally unfair to disallow the

proffered testimony. Ford claims that it was justified in

failing to make the required disclosures under Rule 26

because the testimony in question was merely offered to rebut

the “surprise” testimony of plaintiffs’ expert, Syson, regarding

* instruction on alternative design. See Fulkerson, 812 S.W.2d at 123-24.

The Honorable Algenon L. Marbley, United States District Judge for In fact, Kentucky’s courts believe that this instruction may confuse juries

the Southern District of Ohio, sitting by designation. as to the issues at stake under this doctrine. See id.

22 King, et al. v. Ford Motor Co., et al. No. 98-5960 No. 98-5960 King, et al. v. Ford Motor Co., et al. 3

Since the time Kentucky adopted the doctrine of “strict I.

liability” in products cases as stated in the Restatement,

Second, Torts, § 402A, in the case of Dealer’s Transport On August 21, 1994, Patti Ann King, Ginger Brockman,

Company v. Battery Distributing Company, Ky., 402 and Erica Brockman were in Ginger Brockman’s 1992 Ford

S.W.2d 441 (1966), the Kentucky practice has been to Escort, approaching McKee, Kentucky at about thirty to

state the liability issue in the terms of Restatement: Did thirty-five miles per hour. King was in the front passenger’s

the defendant manufacture, sell or distribute the product seat, Ginger Brockman was driving, and Erica Brockman was

“in a defective condition unreasonably dangerous to the in the back seat. A pickup truck traveling in the opposite

user . . . ?” direction, driven by sixteen-year-old Brian Coyle, unwisely

... attempted to turn in front of Brockman’s car, into the

In Montgomery Elevator Co. v. McCullough, Ky., 676 driveway of a Dairy Freeze restaurant. The front of the Escort

S.W.2d 776, 780-81 (1984), we stated: clipped the truck, causing a Delta V, or change in velocity, in

“Considerations such as feasibility of making a safer the car on the order of twenty-seven miles per hour.

product, patency of the danger, warnings and

instructions, subsequent maintenance and repair, The Escort employed a “passive” or “automatic belt”

misuse, and the products’ inherently unsafe restraint system in its front seats. The system consisted of a

characteristics, while they have a bearing on the two-point motorized shoulder belt that automatically locked

question as to whether the product was in place when the occupant closed her door; a knee bolster

manufactured ‘in a defective condition unreasonably designed to restrain the lower torso;1 and a manual lap belt.

dangerous,’ are all factors bearing on the principal For a period of about six months, King had owned an Eagle

question rather than separate legal questions.” Talon with a similar system, and she was described as an

A trial court is well advised to leave consideration of “avid seatbelt user.” At the time of the accident, however,

these evidentiary factors to the arguments of counsel King was wearing only the automatic shoulder belt and not

rather than attempting to frame them up in the the manual lap belt. She apparently had the lap belt on earlier

instructions on the ultimate questions. The language in the trip, but after her party stopped at the Gray Hawk store

used may be confusing or misleading. to buy a newspaper, she failed to re-engage it.

Id. The district court’s instruction in this case tracked the King suffered massive injuries in the accident – several

language of the Restatement (Second) of Torts § 402A and fractured ribs and a fractured collar bone; lacerations to both

the instruction approved by Fulkerson. It was therefore lungs; and a tear to the left auricle of her heart. She

sufficient under Kentucky law, and we do not find that the ultimately died of a lack of oxygen to her brain as a result of

district court committed reversible error in giving that her heart and lung injuries. King’s estate alleged that her

instruction.9 injuries were the result of defects in the Escort’s restraint

9 1

The trial court was not required, as a matter of federal law, to One of Ford’s experts described the knee bolster as “just a big pad

instruct on design defect. Although the appropriateness of the right down in the lower part of the instrument panel. And it was designed

instructions is reviewed under federal procedural standards, the substance so that if you got in a frontal accident, the torso belt would hold the upper

of the instructions to the jury should be based in state law. See Persian torso back but the lower torso would slide forward until the knees hit the

Galleries, Inc., 38 F.3d at 257. The Kentucky courts have clearly stated bolster and the bolster would, in effect, provide a mechanism for

that to fully expound the law on design defects, the jury need not hear an absorbing energy in the lower torso. . . .”

4 King, et al. v. Ford Motor Co., et al. No. 98-5960 No. 98-5960 King, et al. v. Ford Motor Co., et al. 21

system and filed suit against Ford in the United States District2 see also Schrand, 1999 WL 540877, at *2 (defining duty as

Court for the Eastern District of Kentucky on April 14, 1995. “the exercise of ordinary care to prevent foreseeable injury

It asserted diversity jurisdiction and brought state-law claims from occurring to another person”). We therefore find that

of negligence, strict liability, and breach of implied the district court did not abuse its discretion by failing to give

warranties. Associated Insurance Companies intervened to the requested instruction.

assert subrogation claims for medical expenses, and Amanda

Sue King, King’s daughter, intervened to assert loss of B.

consortium claims.

Ford next contends that, with regard to plaintiffs’ design

Before the case proceeded to trial, Ford filed a motion for defect claim, that the district court erred by failing to give an

partial summary judgment, arguing that, to the extent instruction on alternate feasible designs – that is, an

plaintiffs asserted that the Escort was defective because it instruction that the jury should determine whether there was

failed to contain an air bag, those claims were preempted by an alternate restraint-system design available at the time the

the National Traffic and Motor Vehicle Safety Act of 1966 Escort was manufactured and whether a reasonably prudent

(“Safety Act”), now codified3 at 49 U.S.C. § 30101 et seq., manufacturer would have used this alternative. The court’s

and regulations promulgated thereunder, see 49 C.F.R. design-defect instruction was as follows:

§ 571.208 (1999) (“Standard 208”). The district court granted

this motion and plaintiffs’ remaining claims were tried before In order to recover under her [sic] design defect claim,

a jury. At the close of plaintiffs’ proofs, Ford filed a motion the plaintiffs must establish two essential elements as

for judgment as a matter of law under Fed. R. Civ. P. 50, follows:

asserting that plaintiffs’ claims were preempted in their First, that when the 1992 Ford Escorts left the

entirety. The district court denied this motion. The case went possession of the defendants, the design of the automatic

to the jury on two distinct theories: that the “automatic seat seat belt restraint system was defective and unreasonably

belt restraint system was defective and unreasonably dangerous to the consumer.

dangerous to the consumer” and that Ford failed to warn And second, that the unreasonably dangerous,

consumers of the potential dangers associated with the defective condition of the machine was a substantial

restraint system. After first being sent back for further factor in causing the injury and death of Patti King.

deliberations after returning inconsistent answers to As the term is used in this instruction, a design is

interrogatories, the jury found Ford liable on both claims and defective and unreasonably dangerous if it creates such

a risk of accidental injury to a prospective user that an

ordinarily prudent company engaged in the manufacture

of similar products, being fully aware of the risk, would

not have put it on the market.

2

Neither Ginger Brockman nor Brian Coyle were parties to this In Ford Motor Co. v. Fulkerson, 812 S.W.2d 119, 122-24

action. Their insurance companies settled the Kings’ claims against them. (Ky. 1991), the Kentucky Supreme Court specifically

3 approved for use in product liability actions the very type of

The Safety Act was originally codified at 15 U.S.C. § 1381 et seq. bare-bones design-defect instruction used by the district court

Congress recodified the act in 1994, “‘without substantive change’ to the in this case. The Fulkerson court wrote:

underlying provisions.” Geier v. American Honda Motor Co., 166 F.3d

1236, 1237 n.2 (D.C. Cir.), cert. granted, 120 S. Ct. 33 (1999).

.

20 King, et al. v. Ford Motor Co., et al. No. 98-5960 No. 98-5960 King, et al. v. Ford Motor Co., et al. 5

the safety purpose for the belt.” See Miller’s Bottled Gas, Inc. awarded damages in the amount of $1,848,109.84.4 Ford

v. Borg-Warner Corp., 56 F.3d 726, 736 (6th Cir. 1995) renewed its motion for judgment as a matter of law and filed

(“[T]rial court may refuse to instruct the jury on an issue a motion for a new trial, both to no avail. This timely appeal

when there has been insufficient evidence presented to followed.

support a jury finding on that issue.”); Laugesen v. Anaconda

Co., 510 F.2d 307, 314 (6th Cir. 1975) (stating that trial court II.

had no obligation to instruct on a theory not pleaded by a

party and not supported by evidence); cf. Wagner v. Case Ford first argues that plaintiffs’ claims are preempted by

Corp., 33 F.3d 1253, 1258 (10th Cir. 1994) (approving the federal law. This court generally reviews a district court’s

refusal to give a jury instruction, in a Colorado diversity case, decision with regard to preemption de novo. See GTE

where party requesting instruction offered “vague” evidence Mobilnet v. Johnson, 111 F.3d 469, 475 (6th Cir. 1997).

to support its argument).

The Supremacy Clause of the United States Constitution

Although Ford introduced evidence and argued as to King’s provides that federal law “shall be the supreme Law of the

regular use of a seat belt, none of the evidence adduced by Land . . . any Thing in the Constitution or Laws of and State

Ford indicated that King was aware of the danger of potential to the Contrary notwithstanding.” U.S. Const. art. VI. Thus,

injuries, or worsened injuries, from the use of the shoulder as has been clear since the Supreme Court’s decision in

belt alone. See Demaree v. Toyota Motor Corp., 37 F. Supp. M’Culloch v. Maryland, 17 U.S. 316 (1819), any state law

2d 959, 967 (W.D. Ky. 1999) (applying Kentucky law and that conflicts with federal law is “without effect.” Cipollone

finding no duty to warn because the plaintiff explicitly v. Ligget Group, Inc., 505 U.S. 504, 516 (1992) (citing

testified that she knew of the danger of the car’s air bag). Nor Maryland v. Louisiana, 451 U.S. 725, 746 (1981)).

had Ford pointed to any objective evidence that this danger

was a matter of common knowledge. See Leonard v. In applying the Supremacy Clause, courts “start with the

Uniroyal, 765 F.2d 560, 564 (6th Cir. 1985). assumption that the historic police powers of the States [are]

not to be superseded by [a] Federal Act unless that was the

“A judgment may be reversed only if the instructions, clear and manifest purpose of Congress.” Medtronic v. Lohr,

viewed as a whole, were confusing, misleading, or 518 U.S. 470, 485 (1996) (citing Rice v. Santa Fe Elevator

prejudicial.” Beard v. Norwegian Caribbean Lines, 900 F.2d Corp., 331 U.S. 218, 230 (1947)). Therefore, “‘[t]he purpose

71, 72-73 (6th Cir. 1990). This was not the situation in the of Congress is the ultimate touchstone’ in every pre-emption

present case. We further note that the district court gave an case.” Id. (citing Cipollone, 505 U.S. at 516). The Supreme

instruction stating that in order for the plaintiffs to recover on Court has stated that Congress may make its intent to preempt

a failure-to-warn theory, Ford’s failure to provide an adequate clear either expressly or implicitly. See Freightliner Corp. v.

warning had to be a substantial factor in causing the Myrick, 514 U.S. 280, 287 (1995). Implied preemption, in

decedent’s injuries. Although this instruction goes to turn, takes two forms. “We have found implied conflict

causation rather than duty, it adequately conveys the intent of pre-emption where it is impossible for a private party to

Ford’s requested instruction: if King had already been fully

apprized of the need to wear the lap belt – that is, she was

aware of the danger from not doing so – Ford’s failure to 4

The jury apportioned fault as follows: Ford, 65%; Brian Coyle,

warn King obviously could not have played a substantial 20%; Patti King, 10%; Ginger Brockman, 5%. The estate recovered

factor in causing her death. See Leonard, 765 F.2d at 566 n.5; $823,172.58, Amanda Sue King recovered $975,000.00, and Associated

Insurance Cos. recovered $49,937.58.

6 King, et al. v. Ford Motor Co., et al. No. 98-5960 No. 98-5960 King, et al. v. Ford Motor Co., et al. 19

comply with both state and federal requirements, or where court characterized the requested instruction as a “legal

state law stands as an obstacle to the accomplishment and standard,” and, as such, not a necessary jury instruction. This

execution of the full purposes and objectives of Congress.” Id. characterization is consistent with the Kentucky Supreme

(internal citations and quotations omitted). In summary, then, Court’s indication that, under Kentucky tort law, the issue of

there are three types of preemption – express preemption, whether a defendant has a duty to a plaintiff is generally a

implied conflict preemption, and implied field preemption. question of law to be resolved by the trial court. See Mullins

v. Commonwealth Life Ins. Co., 839 S.W.2d 245, 248 (Ky.

Ford’s argument revolves around the Safety Act, and 1992) (“The question of duty presents an issue of law.”);

Standard 208 promulgated thereunder. The Safety Act Sheehan v. United Service Auto. Assoc., 913 S.W.2d 4, 6 (Ky.

authorizes the Secretary of Transportation to promulgate Ct. App. 1996); Schrand v. Grant, No. 1997-CA-001996-MR,

Federal Motor Vehicle Safety Standards (“FMVSS”). See 49 1999 WL 540877, at *2 (Ky. Ct. App. July 2, 1999).

U.S.C. § 30101. When an FMVSS is in effect, “a State or a

political subdivision of a State may prescribe or continue in In any event, Ford failed to present sufficient evidence

effect a standard applicable to the same aspect of performance warranting such an instruction. Contrary to Ford’s suggestion

of a motor vehicle or motor vehicle equipment only if the on appeal, the absence of a duty to warn was not its theory of

standard is identical to the standard prescribed under this the case. Instead, Ford consistently argued that its warnings

chapter.” 49 U.S.C. § 30103(b). However, the act also were adequate, a distinct issue from a lack of a duty to warn.

contains a savings clause, which provides that “[c]ompliance For example, Ford did not plead a lack of a duty to warn in its

with a motor vehicle safety standard prescribed under this response to King’s complaint. Likewise, in opening

chapter does not exempt a person from liability at common arguments, Ford did not state that it would argue that it had no

law.” 49 U.S.C. § 30103(e). duty to warn. Rather, Ford told the jury, after stating that its

warnings were adequate, that it would show that King wore

The Secretary’s Standard 208, promulgated pursuant to the her seat belt and knew she ought to wear her seat belt,

Safety Act, requires passenger cars manufactured after supportive evidence for its argument that it adequately warned

September 1, 1989 but before September 1, 1993, like the King. Evidence in the case did in fact indicate that King was

Escort in this case, to comply with one of three front-seat- an avid seat belt user, had previously worn the lap belt in

occupant crash-protection options: (1) a complete passive Brockman’s Escort, and had briefly owned an Eagle Talon

restraint system; (2) a passive system (automatic seat belts or with a restraint system similar to that in the 1992 Escort.

air bags) for frontal crash protection, manual belts for lateral Ford only raised the issue of a lack of a duty to warn when it

crashes and rollovers, and a warning system; or (3) manual moved for a directed verdict on that basis, to which the trial

front seat belts with a warning system. See 49 C.F.R. court responded, correctly, “I don’t know of any testimony as

§ 571.208, S4.1.4-S4.1.4.2.2. Ford used option 2 -- an to her knowledge of the danger of the product.”

automatic shoulder belt and knee bolster to protect against

frontal collisions, a manual lap belt to protect against lateral The jury instructions initially submitted to the court by Ford

crashes and rollovers, and a warning system. did not include one stating that Ford did not have a duty to

warn of a known danger. It was only after the district court

Ford’s position is that implied conflict preemption applies had finalized the charge when Ford requested the addition of

in this case. It argues that “[b]ecause federal policy [i.e. the an instruction with this language. In its closing, Ford argued

Safety Act and Standard 208] affirmatively required that these that the court would instruct the jury that “there is a duty to

three options be available to manufacturers, a state rule which warn a person of unknown danger” and that “King knew of

18 King, et al. v. Ford Motor Co., et al. No. 98-5960 No. 98-5960 King, et al. v. Ford Motor Co., et al. 7

prejudicial”). Therefore, the district court had the option of found civil liability for using one of the equipment options

seeking guidance8from Kentucky practice in formulating the rather than another would be preempted.” State tort law

jury instructions. In fact, a federal court’s consideration of removing one option would obviously be “an obstacle to the

a state’s jury instruction practice may insure that the accomplishment and execution of the full purposes and

instructions correctly express state substantive law. See objectives of Congress,” namely the objective that

Laney, 901 F.2d at 1321; cf. Rhea v. Massey-Ferguson, Inc., manufacturers have flexibility in choosing a restraint system.

767 F.2d 266, 269 (6th Cir. 1985) (noting that in Michigan Hines v. Davidowitz, 312 U.S. 52, 67 (1941). Ford contends

the standard instructions must be given, and stating that “[t]he that plaintiffs’ suit would limit this flexibility, as the company

district court had no duty to give the additional requested characterizes plaintiffs’ suit as one claiming that two-point,

instructions if the standard instructions, viewed as a whole, automatic seatbelts with manual lap belts are inherently

fairly and accurately describe” state law). Finally, even if a defective. See Irving v. Mazda Motor Corp., 136 F.3d 764,

district court errs by failing to give a requested instruction, we 768-69 (11th Cir. 1998) (holding such a claim preempted).

will not reverse when the error is harmless. See United States

v. Toney, 161 F.3d 404, 412-13 (6th Cir. 1998), cert. denied, We agree with plaintiffs, however, that Ford has

526 U.S. 1045 (1999). misconstrued their case. As plaintiffs note:

A. In the case at bar . . . plaintiffs’ position was not that the

design choice made by defendants for protecting against

Ford contends that the district court erred by failing to give frontal collisions – an automatic shoulder belt and knee

an instruction stating that it had no duty to warn of known bolster – was inherently defective but that the specific

dangers. Such an instruction would have been an accurate design was defective due to failure to use load limiters

general statement of Kentucky law. See Hutt, 914 F.2d at 793 and/or change the location of the knee bolster and/or

(stating that under Kentucky law, “[t]here is no duty on the change the location of the belt anchor.

part of a manufacturer to warn the user of a product when the

user is aware of the product’s danger”). Such a claim is not preempted by the Safety Act. The

FMVSS provide only the “minimum standard[s] for motor

The trial court rejected Ford’s request to add a jury vehicle or motor vehicle equipment performance.” 49 U.S.C.

instruction providing that “the defendants had no duty to warn § 30102(a)(9). The Safety Act’s savings clause, which states

if Patti King knew of the lap belt and was aware of the that compliance with an FMVSS does not shield a

reasons for wearing it.” In denying the request, the district manufacturer from liability at common law, contemplates that

manufacturers may be held liable for failure to exceed these

minimum standards when their decisions were unreasonable.

8

We recognize that two of our cases – one in unelaborated dicta and

This is the essence of plaintiffs’ claims.

the other unpublished – suggest that the federal district court is not

required to follow the Kentucky bare bones practice. See Robinson v. We find Perry v. Mercedes Benz of North America, Inc.,

Ralph G. Smith, Inc., 735 F.2d 186, 192 n.9 (6th Cir. 1984); Whitescarver 957 F.2d 1257 (5th Cir. 1992), to be analogous to this case.

v. Wal-Mart Stores, Inc., No. 92-5197, 1992 WL 393172, at *3 (6th Cir. There, plaintiff alleged that the air bag in her car had “an

Dec. 29, 1992). Even if we were to consider either of these cases binding, unreasonably dangerous ‘deceleration velocity deployment

a district court is still free to look to a state’s model jury instructions and threshold’” despite the fact that it met the requirements of

other authority to insure it properly instructs the jury under substantive

state law. Standard 208. Id. at 1260. In other words, plaintiff did not

challenge Mercedes’s decision to place an air bag in its cars,

8 King, et al. v. Ford Motor Co., et al. No. 98-5960 No. 98-5960 King, et al. v. Ford Motor Co., et al. 17

but rather argued that the air bag should have been safer than 901 F.2d 1319, 1321 (6th Cir. 1990) (citing Williams v. Union

required by federal law. After finding that express Carbide Corp., 790 F.2d 552 (6th Cir. 1986)).

preemption did not apply, the court held that implied conflict

preemption did not apply either. As an initial matter, the “Kentucky follows the ‘bare-bones’ principle in providing

court found it “obvious” that there was no impossibility of instructions.” McGuire v. Commonwealth of Kentucky, 885

complying with both federal and state law – if state law S.W.2d 931, 936 (Ky. 1994); see also DSG Corp. v.

required a higher level of protection than federal law, a Anderson, 754 F.2d 678, 681-82 (6th Cir. 1985). That is, the

system that complied with state requirements would satisfy jury instructions “should not contain an abundance of detail,

federal regulations a fortiori. The court also found that the but should provide only the bare bones of the question for

differing levels of protection did not create an obstacle to the jury determination. This skeleton may then be fleshed out by

fulfilment of federal objectives. counsel on closing argument.” Ball v. E.W. Scripps Co., 801

S.W.2d 684, 691 (Ky. 1990) (citing Rogers v. Kasdan, 612

Once the manufacturer chooses an option that includes an S.W.2d 133, 136 (Ky. 1981)). The Kentucky Supreme Court

air bag system, Standard 208 S5-S6 merely set forth has stated that:

minimum performance requirements for that system. To

allow tort liability for the design of that system would not In conclusion, it may be well to mention that whenever

remove or require any particular choice, or otherwise counsel feels that jurors might draw inferences that are

frustrate “flexibility” that the federal scheme provides. not warranted by the specific terminology of the

We recognize that the manufacturer who chooses to meet instructions, his opportunity to guard against it comes in

only the bare minimum performance requirements will the closing argument. If instructions are to be kept

be burdened with the potential for tort liability, but this concise and to the point, as they should be, their

is the exact burden that Congress preserved in the supplementation, elaboration and detailed explanation

Savings Clause, when it stated that “[c]ompliance with fall within the realm of advocacy. Contrary to the

any Federal motor vehicle safety standard . . . does not practice in some jurisdictions, where the trial judge

exempt any person from any liability under common comments at length to the jury on the law of the case, the

law.” Congress sought to meet its goal of minimizing traditional objective of our form of instructions is to

the number of deaths and injuries caused by auto confine the judge’s function to the bare essentials and let

accidents by setting forth minimum standards and counsel see to it that the jury clearly understands what

leaving common law liability in place. the instructions mean and what they do not mean.

Id. at 1265-66. The court thus held that plaintiff’s claim was Young v. J.B. Hunt Transp., Inc., 781 S.W.2d 503, 506-07

not preempted. See id; see also Pokorny v. Ford Motor Co., (Ky. 1989) (quoting Collins v. Galbraith, Ky., 494 S.W.2d

902 F.2d 1116, 1126 (3d Cir. 1990) (“Ford’s argument that 527, 531 (Ky. 1973)).

we . . . should simply hold that all safety alternatives not

included in Standard 208 are pre-empted does not persuade In sum, the federal district court had discretion to instruct

us.”); Collazo-Santiago v. Toyota Motor Corp., 957 F. Supp. the jury in any manner it deemed appropriate, as long as it

349, 353 (D.P.R.1997) (“[C]ompliance with performance correctly stated Kentucky’s substantive law, instructed on the

criteria does not immunize manufacturers from common law issues relevant to the case at hand, and did not mislead the

liability arising from any defects in the production or design jury. See Davis v. Mutual Life Ins. Co., 6 F.3d 367, 373 (6th

of their passive restraint systems.”); cf. Sours v. General Cir. 1993) (requiring reversal “only where the instructions,

considered as a whole, are confusing, misleading, or

16 King, et al. v. Ford Motor Co., et al. No. 98-5960 No. 98-5960 King, et al. v. Ford Motor Co., et al. 9

this case, the district court’s 7limited questioning of Juror 12 Motors Corp., 717 F.2d 1511, 1516-17 (6th Cir. 1983)

was proper and not coercive. (“[T]he very federal safety statute upon which GM relies

makes it abundantly clear that compliance with the

VI. regulations promulgated thereunder does not immunize a

manufacturer from common law liability.” (citing 15 U.S.C.

Ford next contends it is entitled to a new trial because the § 1397(c) (1976))). We hold that the plaintiffs’ claims in this

district court erred by failing to give two of its requested case similarly are not preempted.

instructions. This court reviews a district court’s refusal to

give requested jury instructions under an abuse of discretion III.

standard. See Buziashvili v. Inman, 106 F.3d 709, 715 (6th

Cir. 1997). We review jury instructions “as a whole in order Ford next argues that plaintiffs’ evidence was insufficient

to determine whether [the instructions] adequately inform the to support a verdict on either their product defect theory or

jury of relevant considerations and provide a basis in law for their failure-to-warn theory. In diversity cases, this court

aiding the jury to reach its decision.” Gafford v. General applies a state-law standard of review to motions for

Elec. Co., 997 F.2d 150, 166 (6th Cir. 1993) (quoting Beard judgment as a matter of law which challenge the sufficiency

v. Norwegian Caribbean Lines, 900 F.2d 71, 72 (6th Cir. of the evidence necessary to support the jury's verdict. See

1990)). Morales v. American Honda Motor Co., 151 F.3d 500, 506

(6th Cir. 1998). Under Kentucky law, the applicable standard

In a diversity action, state law determines the substance of of review is as follows:

the jury instructions; however, questions regarding the

propriety of the instructions are governed by federal Under Kentucky law, a motion for a directed verdict –

procedural law. See Persian Galleries, Inc. v. the same thing as a motion for judgment as a matter of

Transcontinental Ins. Co., 38 F.3d 253, 257 (6th Cir. 1994). law under Rule 50, Fed. R. Civ. P. – should be granted

In addition, trial courts have broad discretion in framing jury only if “there is a complete absence of proof on a

instructions. See United States v. Moore, 129 F.3d 873, 876- material issue in the action, or if no disputed issue of fact

77 (6th Cir. 1977); see also Scamardo v. Scott County, 189 exists upon which reasonable minds could differ.”

F.3d 707, 711 (8th Cir. 1999); Jennings v. BIC Corp., 181 Washington v. Goodman, 830 S.W.2d 398, 400 (Ky.

F.3d 1250, 1254 (11th Cir. 1999). “It is the better practice for App. 1992). In deciding such a question, “every

a federal court sitting in diversity to use state approved jury favorable inference which may reasonably be drawn from

instructions” in order to accurately instruct the jury on the the evidence should be accorded the party against whom

appropriate state substantive law. Laney v. Celotex Corp., the motion is made.” Baylis v. Lourdes Hosp., Inc., 805

S.W.2d 122, 125 (Ky. 1991).

7

Ford also argues that the form of the question used by the district Id. (quoting Adam v. J.B. Hunt Transp., Inc., 130 F.3d 219,

court – asking whether Juror 12 agreed with the verdict – was improper 231 (6th Cir. 1997)).

and that the question was “legally meaningless.” This argument is

without merit. If a trial court decides to poll the jury, it has substantial A.

discretion in determining the manner of polling. See Audette, 789 F.2d at

959-60. “Unless the trial judge’s interrogation serves to coerce a reluctant We turn first to the sufficiency of the evidence in plaintiffs’

juror into changing his vote, any formulation that [serves to ascertain that product defect claim. Following the Restatement (Second) of

the verdict was unanimous] is permissible.” Green v. Zant, 738 F.2d

1529, 1537-38 (11th Cir. 1984). Torts § 402A, Kentucky imposes strict liability when the

10 King, et al. v. Ford Motor Co., et al. No. 98-5960 No. 98-5960 King, et al. v. Ford Motor Co., et al. 15

“‘design itself selected by the manufacturer amounted to a 31(d); Grossheim v. Freightliner Corp., 974 F.2d 745, 752-53

defective condition which was unreasonably dangerous.’” (6th Cir. 1992) (affirming grant of new trial when polling

Morales v. American Honda Motor Co., 71 F.3d 531, 536 revealed that juror only assented to verdict so that she “could

(6th Cir. 1995) (citing Nichols v. Union Underwear Co., 602 go home”). There is a line of cases from other circuits that

S.W.2d 429, 433 (Ky. 1980)). The plaintiff has the burden, holds that it is error for a district court to force a juror who

however, to establish causation under the substantial factor has expressed reluctance with a verdict during a jury poll to

test – that is, plaintiff must prove that the defendant’s conduct cast his or her vote in open court without further deliberation

was a substantial factor in bringing about plaintiff’s harm. Id. in the jury room. See, e.g., United States v. Edwards, 469

at 537 (citing Deutsch v. Shein, 597 S.W.2d 141, 144 (Ky. F.2d 1362, 1366 (5th Cir. 1972) (finding reversible error

1980); Huffman v. SS. Mary & Elizabeth Hosp., 475 S.W.2d when judge demanded that juror state whether or not the

631, 633 (Ky. 1972)). Plaintiff may use circumstantial verdict was hers when she initially indicated that the verdict

evidence, and “in that situation, ‘the evidence must be was hers, but that she was “still in doubt”). However, a

sufficient to tilt the balance from possibility to probability.’” judge’s limited questioning of a juror regarding a poll answer

Id. (citing cases). is not coercive or otherwise erroneous if used simply to clear

up ambiguity in the juror’s answer. See id. at 1367 n.5

Ford contends that “the plaintiffs here presented no (finding a “limited exception to the bar of questioning from

testimony upon which a jury could find that King’s injuries the bench” when it is apparent that the juror was confused

were caused by belt loading that exceeded her tolerances. about a poll question or when the “juror’s dissent has resulted

That was left to sheer speculation and surmise.” Ford focuses from an inadvertent slip of the tongue”); Williams v. United

on the testimony of two of plaintiffs’ experts, Syson and States, 419 F.2d 740, 746 (D.C. Cir. 1969) (“There is a

Lafferty. Syson testified that King would have had a belt load distinction in law and in fact between actions of the trial judge

of 1,100 to 1,300 pounds during the accident and that this was to obtain clarity in place of confusion, and actions that

“right at her tolerance level,” as a 138 lb. woman. Ford also produce a likelihood that a juror has been coerced.”). Here,

claims that Lafferty testified that a woman’s tolerance level is the situation that precipitated the district court’s questions

higher than 1,100 to 1,300 lbs. Thus, the company contends was confusing. The jury was leaving the courtroom, the

that neither testified that the belt load in this case exceeded judge’s microphone was not on at first, and there is some

the decedent’s tolerance level. Ford therefore contends that indication that Juror 12 was having trouble hearing the judge.

plaintiffs failed to prove causation in this accident. Furthermore, the district court stated, in denying Ford’s

motion for a new trial based on this issue, that Juror 12

We reject this argument. As an initial matter, Ford distorts appeared “perplexed.” See United States v. Brooks, 420 F.2d

Lafferty’s testimony. Ford claims that “Dr. Lafferty testified 1350, 1353 (D.C. Cir. 1969) (noting that “the trial judge is in

that the human tolerance belt loads for a female would range a much better position than an appellate tribunal to determine

between 1,400-1,600 pounds.” In reality, Lafferty testified, whether a recalcitrant juror’s eventual acquiescence in a

consistent with Syson, that this 1,400-1,600 lb. figure verdict was in fact freely given”). Under the circumstances of

represented the average tolerance level for “a 50 percentile

male.” Lafferty did not give a figure for the average woman’s

tolerance level – or for the decedent’s tolerance level, for that

matter – but did testify that the thresholds are lower for

women than for men. Second, as plaintiffs note, the evidence

indicated that “there is great variation from one person to the

14 King, et al. v. Ford Motor Co., et al. No. 98-5960 No. 98-5960 King, et al. v. Ford Motor Co., et al. 11

whether the verdict represented his or her answer.6 Rather next” with regard to the amount of force that they can tolerate.

than answering yes or no, Juror 12 answered “Here.” The Therefore, one should not interpret Syson’s statement that the

court apparently thought that all of the jurors had said yes, belt loads were “right at her tolerance level” as an indication

and dismissed the jury. As the members were leaving, that the belt loads did not exceed the decedent’s tolerance

however, the court reporter alerted the court to Juror 12's level. Finally, circumstantial evidence strongly supports the

anomalous answer. The court stopped the jury, and the plaintiffs’ case. After the accident, the decedent was found

following exchange occurred: turning blue with the seat belt cutting into her neck and chest.

The belt had to be cut to relieve the pressure. There is

THE COURT: All right. I need to know from you testimony that her injuries were typical of those caused by

whether the verdict that was rendered represents your restraint systems. Additionally, plaintiffs’ experts eliminated

own verdict. Yes or no? other possible sources -- there was no evidence that the

A JUROR: No. decedent impacted the windshield or the dashboard, with the

THE COURT: I’m sorry? exception of her hand and possibly her knee. There was

A [DIFFERENT] JUROR: He can’t hear you. certainly sufficient evidence in this case whereby a jury could

THE COURT: I’m sorry I don’t have the microphone have concluded that decedent’s injuries were caused by

on. I need to know whether the verdict that was returned excessive belt loads.

represents your verdict?

A JUROR: No. B.

THE COURT: Do you by saying no, are you saying that

you do not agree with the verdict? Ford also contends that there was insufficient evidence for

A JUROR: I agree with it, yeah, all of it. the jury to find that the warnings in the 1992 Escort were

THE COURT: All right. What do you mean when you defective and a substantial factor in causing the decedent’s

say that you say it’s not your verdict? I just want to injuries. Specifically, Ford claims that the evidence in the

know if you agree with it or not agree with it. case demonstrates that the danger of not wearing the lap belt

A JUROR: I agree with it, what we put down. was known to the decedent and that the warnings located in

the Escort as to that danger were adequate.

Ford’s position is that the court coerced Juror 12 into giving

his consent to the verdict. Generally, the proper procedure Ford is correct that in Kentucky there is no duty to warn of

when a poll indicates that unanimity with a verdict is a known danger. See Hutt v. Gibson Fiber Glass Prods., Inc.,

uncertain is to return the jury to the jury room for further 914 F.2d 790, 793 (6th Cir. 1990); Demaree v. Toyota Motor

deliberations or to declare a mistrial. Cf. Fed. R. Crim. P. Corp., 37 F. Supp. 2d 959, 967 (W.D. Ky. 1999). The

evidence here demonstrated that the decedent was an avid seat

belt user and that she had in fact been wearing the lap belt in

6 the Escort earlier in the day.

Under Fed. R. Crim. P. 31(d) a party in a criminal case has the right

to have the jury polled. Although jury polling clearly does take place in

civil trials, see, e.g., Grossheim, 974 F.2d at 748, there is no express The jury, however, may have permissibly concluded from

provision for polling in the Federal Rules of Civil Procedure. See Audette the evidence in this case that the decedent was aware that not

v. Isaksen Fishing Corp., 789 F.2d 956, 959 (1st Cir. 1986). It is wearing the lap belt would reduce the effectiveness of the

apparently an unsettled question as to whether a party has a right to restraint system in preventing injuries caused by hitting the

demand a jury poll in a civil case. See id. In any event, in civil cases

when there are questions as to polling procedure, courts apparently look dashboard or the like, but that she was not aware that the

to criminal cases for guidance. See, e.g., id. at 958-60. failure to wear the belt could lead to deadly injuries caused by

12 King, et al. v. Ford Motor Co., et al. No. 98-5960 No. 98-5960 King, et al. v. Ford Motor Co., et al. 13

the shoulder harness, even in a relatively minor accident. Id. at 520. We affirm the district court on this issue.

Therefore, we cannot conclude, as a matter of law, that the

decedent was aware of the danger involved in this case. IV.

Nor can we conclude that the Escort’s warnings were Ford next argues that the district court erred by failing to

adequate as a matter of law. The warning located on the order a new trial when the jury returned with inconsistent

Escort’s visor stated: interrogatory answers. Fed. R. Civ. P. 49(b) provides that

when the jury so returns, the court should send the jury back

IMPORTANT FOR YOUR SAFETY for further deliberations or order a new trial. Ford moved for

Following these instructions will greatly improve your the latter, but the district court did the former.

chances of avoiding severe injury in case of an accident.

Be sure the shoulder belt buckle is engaged. This issue requires little discussion. “In deciding at what

Always wear your lap belt when the car is moving. If a point further deliberations by a particular jury would be

lap belt cannot be worn, you should move the seat fruitless or unduly coercive, the trial judge has wide

forward so your knees are as close to the instrument discretion.” United States v. Stevens, 177 F.3d 579, 583 (6th

panel as possible. Cir. 1999). Ford provides absolutely no case law or reasoning

to support its claim that resolving the inconsistency in the

Under Kentucky law, a warning “must be fair and adequate, jury’s initial answers to the interrogatories required not

to the end that the user, by the exercise of reasonable care on merely a correction, but a change in the jury’s conclusions.

his own part, shall have a fair and adequate notice of the Cf. United States v. Vazquez-Rivera, 135 F.3d 172, 177 (1st

possible consequences of use or even misuse.” Post v. Cir.1998) (“Painting black lines on the sides of a horse and

American Cleaning Equip. Corp., 437 S.W.2d 516, 520 (Ky. calling it a zebra does not make it one.”).

App. 1968) (citing 76 A.L.R.2d 9, 37 (1961)). While the

warning in this case does indicate that following its advice V.

will “improve your chances of avoiding severe injury in case

of an accident” it does not indicate that misuse could lead to Ford next argues that it was entitled to a new trial because

severe injury caused by the shoulder belt itself. It was of defects in the jury verdict. This court reviews for abuse of

certainly within the jury’s prerogative to conclude that the discretion a district court’s denial of a motion for a new trial.

warning in this case did not adequately convey the dangers See United States v. Rapanos, 115 F.3d 367, 372 (6th Cir.

involved. Post provides: 1997).

As an example, it may be doubted that a sign warning, Ford claims that the verdict in this case was not

“Keep off the Grass,” could be deemed sufficient to unanimous.5 After the jury returned following further

apprise a reasonable person that the grass was infested deliberations, each member of the jury was polled as to

with deadly snakes. In some circumstances a reasonable

man might well risk the penalty of not keeping off the

grass although he would hardly be so daring if he knew

the real consequences of his failing to observe the

warning sign. Or, a warning to “Keep in a Cool Place” 5

The verdict had to be unanimous in this diversity civil case because

might not be sufficient if the result of nonobservance was the court gave a unanimity instruction. See Grossheim v. Freightliner

a lethal explosion of the container. Corp., 974 F.2d 745, 753 (6th Cir. 1992).