Nemir v. Mitsubishi Motors

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206 2 Nemir v. Mitsubishi Nos. 02-1780; 03-1228

ELECTRONIC CITATION: 2004 FED App. 0273P (6th Cir.) Motor Corp., et al.

File Name: 04a0273p.06

_________________

UNITED STATES COURT OF APPEALS COUNSEL

FOR THE SIXTH CIRCUIT ARGUED: Mark R. Bendure, BENDURE & THOMAS,

_________________ Detroit, Michigan, for Appellant. David R. Kelly,

BOWMAN & BROOKE, Minneapolis, Minnesota, for

MICHAEL A. NEMIR, M.D., X Appellees. ON BRIEF: Mark R. Bendure, BENDURE &

Plaintiff-Appellant, - THOMAS, Detroit, Michigan, Craig E. Hilborn, HILBORN

- & HILBORN, Birmingham, Michigan, for Appellant. David

- Nos. 02-1780; R. Kelly, BOWMAN & BROOKE, Minneapolis, Minnesota,

v. - 03-1228 Fred J. Fresard, Gretchen A. Colter, BOWMAN & BROOKE,

> Troy, Michigan, for Appellees.

,

MITSUBISHI MOTORS -

CORPORATION ; CHRYSLER _________________

-

CORPORATION , - OPINION

Defendants-Appellees. - _________________

-

N R. GUY COLE, JR., Circuit Judge. This case reaches us

Appeal from the United States District Court for the fourth time. See Nemir v. Mitsubishi Motor Sales of

for the Eastern District of Michigan at Detroit. Am., Inc., 6 Fed. Appx. 266 (6th Cir. 2001) (unpublished)

No. 96-75380—John Feikens, District Judge. (per curiam) (“Nemir I”); In re. Michael A. Nemir, No. 01-

2260 (6th Cir. Oct. 12, 2001) (“Nemir II”); Nemir v.

Argued: March 18, 2004 Mitsubishi Motor Sales of Am., Inc., No-02-1780 (6th Cir.

Feb. 3, 2003) (“Nemir III”). Plaintiff-Appellant Michael A.

Decided and Filed: August 20, 2004 Nemir brought a diversity products liability suit against

Defendants-Appellees Mitsubishi Motors Corporation and its

Before: COLE and GILMAN, Circuit Judges; parent company, Chrysler Corporation, alleging that his

SCHWARZER, Senior District Judge.* seatbelt’s failure to latch caused injuries that left him brain-

damaged and paralyzed following a car accident. After the

jury rejected Nemir’s claims, the district court entered

judgment for, and awarded costs to, Mitsubishi, and Nemir

appealed both decisions. For the following reasons: (1) the

district court’s judgment for Mitsubishi is REVERSED and

the case is REMANDED for a new trial; (2) the district

* court’s award of fees to Mitsubishi is VACATED; and (3) the

The Honorable William W Schwarzer, Senior United States District case is to be assigned to a different district judge.

Judge for the Northern District of California, sitting by designation.

1

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I. BACKGROUND In December 1994, based on complaints it had received, the

National Highway Traffic Safety Administration (NHTSA)

Given this case’s dense history and its relevance to today’s opened an investigation into “[a]lleged defect[s] of Takata

appeal, we will narrate the background in some detail. On seat belt buckles includ[ing] failure to latch, unlatch, or

December 14, 1993, near his home in Maryland, Nemir drove remain latched.” NHTSA requested information from

his car into a tree on the side of the road, causing his head to Chrysler, including complaints received from its customers,

strike a pillar on the car’s passenger side. He was found lying pertaining to “all model years 1986 through 1991 Dodge

in the car’s backseat, and the driver’s side seatbelt was Colt[s] and any other passenger motor vehicles equipped with

unlatched. The accident damaged Nemir’s brain stem, Takata [52] series.” (In 1996, owing to a manufacturing

leaving him wheelchair bound, cortically blind, and unable to defect, some Takata 52 seatbelts—but not the seatbelt at issue

continue practicing medicine. On November 22, 1996, Nemir in our case—were recalled.)

filed suit against Mitsubishi, the maker of the 1991 Dodge

Stealth that Nemir was driving, and Chrysler, of which Aware of this investigation, Nemir sought discovery from

Mitsubishi is a subsidiary. (For simplicity’s sake, we will Mitsubishi of “[a]ll documents containing, referring to, or

refer to the defendants collectively as “Mitsubishi.”) relating to any claims, assertions, or reports by an individual

or entity that any Dodge vehicle using the same or similar

Nemir’s complaint alleged that at the time of the accident, seatbelt system wherein a front seat belted passenger received

he had been wearing his seatbelt— the Takata 52—but that it a serious or fatal injuries.” On October 31, 1997, Mitsubishi

had only “partially latched,” such that it appeared to be responded that it “has no documents responsive to this

properly fastened when in fact it was still prone to unlatching. request.” On September 11, 1998, Mitsubishi reaffirmed that

Seeking both compensatory and punitive damages, Nemir it “currently is unaware of any materials responsive to this

asserted that the seatbelt was defectively designed because of request.” When Nemir further pressed the issue at a hearing

its potential to unlatch, and because of the vehicle’s failure to held on November 17, 1998, Mitsubishi insisted that “[w]ith

alert the driver that the seatbelt was not fully latched. The respect to all of the requests that are contained in the order,

failure to warn and punitive damages claims were we produced what documents exist and what documents were

subsequently dismissed, and we affirmed those dismissals in able to be located . . . we searched, as we did for all of the

Nemir I, 6 Fed.Appx. at 277. other requests, and found nothing that was responsive to the

request.”

Prior to trial, Nemir retained an expert witness, Dr. Thomas

Horton, the former Director of Engineering for Takata, Inc., Nemir eventually filed a Freedom of Information Act

the seatbelt’s manufacturer. Horton planned to testify that request with NHTSA, and subsequently obtained 200 to 300

Nemir’s seatbelt suffered from a design defect, known as complaints of partial latching in Mitsubishi and Chrysler

“partial-latching,” which caused the seatbelt to unlatch during automobiles. The documents included evidence of

the accident. However, the district court ruled that Horton “[Mitsubishi’s] own employees going out and confirming

was unqualified to testify as an expert witness, due to partial latch in the field.” When asked by the district court

purported deficiencies in his methodology. whether Mitsubishi had any additional documents similar to

the ones that Nemir obtained from the NHTSA, Mitsubishi’s

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counsel told the court that “I don’t know of any other abovementioned testing] to testify that the partial latch of Dr.

documents, Your Honor.” Nemir’s seatbelt caused the damage in question.” Id. at 275.

Third, we held that Nemir had produced sufficient evidence

The district court ordered Mitsubishi to search again for for a jury to conclude that a design defect rendered the buckle

additional complaints in its possession. On April 13, 1999, unreasonably dangerous. Id. at 277. We remanded for trial.

Mitsubishi admitted that it possessed, but had not previously

disclosed, approximately 4,000 customer contact reports We also ordered the district court to afford Nemir sufficient

documenting complaints, along with approximately 25,000 time and opportunity to investigate the consumer complaints

warranty claims about the partial latching of the seatbelts. that Mitsubishi had turned over at “the eleventh hour.” Id. at

Mitsubishi—who claimed to have previously withheld these 275. Although Mitsubishi argued that none of the consumer

documents because “they do not show claims that partial complaints contained the words “partial latch,” and thus were

latching occurred in the manner alleged to have occurred in not discoverable, we rejoined that “the term ‘partial latch

this case”—continued to maintain that the documents should phenomenon’ is a term of art employed by engineers, seatbelt

not be disclosed to Nemir. designers, and lawyers. The layman with a concern that his

seatbelt will not remain fastened will not use this term.” Id.

Although the district court disagreed, it also prohibited at 276. After reviewing the sample of 188 complaints that

Nemir from “conduct[ing] further discovery by attempting to Nemir had included in the appellate record, we noted that “

interview or contact complainants listed in these documents.” [a] complete review of the record indicates that phraseology

Moreover, the district court scheduled argument on analogous to ‘intermittent partial latching’ occurred 188 times

Mitsubishi’s motion for summary judgment for May 21, in the customer complaints submitted as evidence. To

1999—just seventeen days after the 29,000 documents were summarily dismiss this evidence without affording the

ordered disclosed. On July 30, 1999, the district court plaintiff time to investigate and further elicit information

granted summary judgment to Mitsubishi, holding that Nemir regarding the exact nature of these incidents is clear error.”

had failed to present evidence by which a reasonable jury Id.

could find (under Maryland law, which the parties agree

controls) that the buckle suffered from a design defect. Nemir On remand, the district court issued a new protective order.

v. Mitsubishi Motor Sales of America, 60 F.Supp.2d 660, 673- The order limited Nemir’s discovery to “the 188 complainants

77 (E.D.Mich. 1999). referred to by” our decision in Nemir I. Although Nemir

argued to the district court that Nemir I singled out 188

In Nemir I, we reversed. First, we noted that the district complaints only because that was the number of complaints

court had erroneously stated that Horton had not examined the that had been included in the appellate record—in other

actual buckle in Nemir’s seatbelt—an omission that the words, that we had not manually sifted through each and

district court had dubbed “inexplicable”—when in fact the every of the 29,000 complaints and determined that only 188

record revealed that Horton had testified that he had examined were relevant—the district court nonetheless refused to allow

the actual buckle and that it had partially latched twice out of Nemir to investigate the other 28,000-plus complaints,

twenty attempts. Id. at 274. Second, we held that the district insisting that “I’m going to stay literally with what the panel

court erroneously excluded the entirety of Horton’s said.”

testimony, and specifically held that “Horton could use [the

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In addition, the order prohibited Nemir from directly When Nemir pressed for sanctions at a hearing conducted

contacting any of Mitsubishi’s consumers outside of defense on March 16, 2001, the district court refused to “reach the

counsel’s presence. Of the 188 customers that Nemir was motion for sanctions at this point,” and complained that “I

permitted to contact, he was able to locate only thirteen. Prior just don’t want to be bothered with sanctions.” Instead, the

to the depositions of those witnesses, Nemir asked the district district court decided to “stay that matter and return to it when

court for permission to contact additional complainants the time is appropriate.” The district court never revisited the

beyond the original 188; the district court told Nemir that he motion, and also prohibited Nemir from informing the jury

should conduct the first set of depositions, and then “if you that Mitsubishi had initially withheld the consumer

need to expand this discovery further, come back to me on it.” complaints.

Nemir never did so.

In addition, despite our holding in Nemir I that its

Nemir did ask the district court to sanction Mitsubishi for namesake had “demonstrate[d] a triable issue of fact with

its refusal to disclose the 29,000 documents. He appended to regard to the design defect condition and the unreasonably

his motion evidence that the improper withholding of relevant dangerous condition of the product,” the district court again

discovery was not an uncommon practice of both Mitsubishi ruled that “[n]othing in the record before [us] indicates that

and its lead counsel. Nemir attached an affidavit from a Dr. Nemir’s seatbelt caused an unreasonably dangerous

plaintiff’s attorney, who had litigated against Mitsubishi in a condition.” Convinced that the district court had ignored our

prior case and averred that “Mitsubishi [had] repeatedly prior decision to the contrary, Nemir sought from us a writ of

refused to turn over properly requested information and mandamus compelling the district court to “submit to the jury

respond to interrogatories,” and “did not produce certain the issue of ‘inherently unreasonable risk’ in accord with

materials until it was threatened with daily fines.” Also [Nemir I].” The district court responded to the petition for

submitted by Nemir was a copy of the decision in Baker v. mandamus by assuring us that its ruling was “subject to

General Motors Corp.,159 F.R.D. 519 (W.D. Mo. 1994), change based on the proofs that are presented.” Nemir II, slip

reversed on other grounds, Baker v. General Motors Corp., op at 5. Relying on the district court’s assurances, we denied

86 F.3d 811, 817 (8th Cir. 1996), in which Mitsubishi’s lead the petition for mandamus, concluding that “[t]he case is

counsel had defended General Motors against lawsuits proceeding to trial in accordance with our determination that

arising from electrical fires in certain vehicles. There, the the plaintiff has presented sufficient proof to create a question

court noted that “[e]very time a request was made for a for the jury regarding his design defect claim.” Nemir II, slip

document, [counsel] took it upon [him]self to determine what op. at 2.

scope [he] thought was relevant,” id. at 523, the court found

numerous examples “of the types of critical documents that Notwithstanding our instructions in Nemir II, the district

were ‘dumped’ on plaintiffs the week before trial,” id. at 522, court, pursuant to Federal Rule of Evidence 706, appointed

and the court concluded that there was a “deliberate, willful Eddie P. Cooper and Lindley Manning as experts to help the

policy on the part of [counsel] to stonewall discovery as much court “determine whether the seatbelt buckle presented an

and as long as the patience of the Court would tolerate.” Id. inherent unreasonable risk of danger to the plaintiff.”

at 524. Cooper—who was employed by a consulting company that

had performed significant work for Mitsubishi and

Takata—concluded that the seatbelt was not inherently

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dangerous. Manning, echoing Horton’s conclusions, testified by confronting him with a contradictory excerpt from a book

that he too had been able to partially engage the Nemir buckle that had been co-authored by Dr. Werner Spitz, another of

during laboratory testing. Manning also opined that “the Mitsubishi’s experts. The district court prohibited this

defect that we found is unreasonably dangerous . . . . The fact questioning, however, concluding that because Dr. Spitz

that it would happen even once or a few times makes it would be testifying later in the case, Nemir should simply

unreasonably dangerous.” On May 22, 2002, relying on the elicit the information from Dr. Spitz when he testified.

testimony of Cooper and discounting that of Manning, the

district court again held that the seatbelt “does not present an The next day, when Nemir’s attorney attempted to question

inherently unreasonable risk of danger,” thereby reiterating its Dr. Spitz about his book, the district court sustained

unwillingness to instruct the jury on Nemir’s theory of strict Mitsubishi’s objection to the questioning, as illustrated by the

liability. See Nemir v. Mitsubishi Motors Corp., 201 following exchange:

F.Supp.2d 779, 783 (E.D.Mich. 2002).

Nemir’s Counsel (questioning Dr. Spitz): [Your book]

The trial was fueled by three disputed issues. First was talks about the brain stem contusions and I’m looking at

whether Nemir was wearing his seatbelt at the time of the the chart that Dr. Hatsell has that we all saw . . .

accident. Nemir testified generally that he almost always

wore his seatbelt while driving, and specifically that he was Mitsubishi’s Counsel: Your Honor, I would object to

wearing it at the time of the accident. In support of Nemir’s any questioning of this witness on the issue of brain

testimony, another of his experts, Dr. Joseph L. Burton, injury and injury causation. Although he is qualified,

testified that cotton fibers resembling those from Nemir’s he’s not given any testimony on direct examination on

jacket were embedded along the edge of the seatbelt; that the injury causation, and we’re not offering him for that.

seatbelt appeared to have been stretched; and that the buckle

had “loading marks” consistent with wear. Mitsubishi Nemir’s Counsel: Well, I – I specifically . . .

submitted evidence indicating that Nemir’s injuries had

diminished his memory of the accident, and produced expert Judge Feikens: If he’s not being offered for that, then

witnesses who downplayed the conclusiveness of Nemir’s why are you going into it?

fiber evidence and surmised that Nemir’s seatbelt lacked the Nemir’s Counsel: Because you asked me to do it, your

markings that would have appeared had it been worn during Honor. I asked to be able to cross-examine with his book

the accident. yesterday with Dr. Hatsell, and you said the proper place

Second was the question of the cause of Nemir’s injuries. to do it was with this witness.

Burton testified that had he been belted, Nemir’s collision Judge Feikens: On . . . on brain injury even though he’s

with the pillar would have been much slower, and Nemir not being offered from that reason?

would have suffered milder injuries. Mitsubishi’s expert, Dr.

Charles Hatsell, concluded that the injuries to Nemir’s brain Nemir’s Counsel: Your Honor, I tried to cross-examine

stem resulted from head rotation that even a fully functioning to show this man had written—or shown that Hatsell’s

seatbelt would have failed to prevent. Through cross-

examination, Nemir’s attorney attempted to impeach Hatsell

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opinion is impossible. I tried to cross-examine. You question so that he could pinpoint the cause, Mitsubishi

said, no, I should do it with . . . claimed that it had not performed any such tests. The district

court prohibited Nemir from introducing—in order to explain

Judge Feikens: I’ll sustain the objection. why there was not more evidence of partial engagement

during actual use—evidence that Mitsubishi had failed to test

Needless to say, the impeaching passage never reached the the buckles flagged by its customers. And Mitsubishi’s

jury. expert testified that it was impossible to achieve partial

engagement in actual use.

Third was whether the seatbelt was capable of partially

latching, such that it could malfunction during an accident. The jury’s Verdict Form posed three questions:

Dr. Horton testified that the seatbelt buckle was unreasonably

dangerous because it allowed for “partial engagement.” But 1. Was Nemir wearing his seatbelt at the time of the

he was unable to explain the basis for his conclusion because accident?

the district court prohibited Horton from testifying that he

was able, twice out of twenty attempts, to create a partial latch 2. If yes, was the seatbelt defective?

of Nemir’s seatbelt buckle, opining that Horton’s method—in

which he manipulated the buckle at varying speeds and 3. If yes, was the defect the proximate cause of Nemir’s

angles—was scientifically unsound. Nemir, 200 F.Supp.2d injuries?

at 778. The district court also prohibited Horton from

testifying about causation, reiterating its prior concern that The jury answered that Nemir was not wearing his seatbelt at

Horton “does not demonstrate how he arrived at his the time of the accident, and therefore did not reach the other

conclusion that partial latch caused Nemir’s injuries or how questions. On July 4, 2002, the district court entered

he eliminated other possibilities, chief among which is the judgment for Mitsubishi.

possibility that Nemir was not wearing a seat belt.” Nemir,

200 F.Supp.2d at 776. Moreover, although Federal Rule of On June 12, 2002, Nemir appealed, arguing that the district

Evidence 706 provides that a court-appointed witness “may court erred in excluding portions of Horton’s testimony,

be called to testify by the court or any party,” the district court restricting his access to customers who had filed complaints,

refused to allow Nemir to call Manning at trial. refusing to instruct the jury on strict liability, refusing to

allow him to call Dr. Manning, and inhibiting his

Taking advantage of the gaps in Horton’s testimony and the impeachment of Dr. Hatsell. After Nemir submitted his

absence of Manning’s testimony, Mitsubishi argued to the appellate brief, the district court ordered Nemir to post a bond

jury, among other things, that partial latching had never been of $20,000 to secure the costs of the appeal.

demonstrated, that Horton’s testimony was “sheer

speculation,” and that “[y]ou can’t prove your case with just In the meantime, Mitsubishi asked the district court to

the words of a hired expert.” Moreover, although the other award it $48,000 in costs from Nemir. Pursuant to 28 U.S.C.

court-appointed witness, Cooper, had testified prior to trial § 1920, the Clerk of the district court entered an order

that were he a manufacturer that had received complaints of awarding $24,000, refusing to award Mitsubishi all of its

unlatching seatbelts, he would want to examine the buckles in request for court reporter and duplication fees. Indeed, the

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Bill of Costs Handbook states that the latter are “not Our prior holding that Nemir had created a triable issue as

recoverable within the discretion of the taxation clerk unless to strict liability bound the district court. “[U]pon remand of

counsel has previously secured an order authorizing the a case for further proceedings after a decision by the appellate

recovery of these costs,” which Mitsubishi had not. court, the trial court must proceed in accordance with the

Mitsubishi petitioned the district court to reinstate $21,000 of mandate and the law of the case as established on appeal. The

the $24,000 in denied costs. trial court must implement both the letter and the spirit of the

mandate, taking into account the appellate court’s opinion and

On February 3, 2003, we reversed the district court’s the circumstances it embraces.” United States v. Moored, 38

setting the surety bond at $20,000, holding that a $1,000 bond F.3d 1419, 1421 (6th Cir. 1994). As we made clear in Nemir

“will be adequate to protect the defendant’s interests.” Nemir I, the district court was required to allow Nemir to present his

III, slip op. at 1. The day after we issued our opinion, the strict liability theory to the jury.

district court vacated the Clerk’s award of costs and awarded

Mitsubishi the entirety of its original request—that is, $3,000 Mitsubishi maintains, however, that our prior decision did

more than even Mitsubishi had asked to be added to the not reach this issue, contending that “[Nemir] is under the

Clerk’s initial award. Nemir separately appealed the district mistaken belief that this Court’s opinion established the law

court’s award of costs. of the case on the issue of which Maryland law standard of

proof would apply, ‘inherently unreasonably dangerous’ strict

II. ANALYSIS liability or the risk/utility . . . balancing test. However, it is

clear from the language of [Nemir I] that this Court did not

Nemir asserts that the district court erred in: (1) refusing to address that issue . . . .” Mitsubishi’s argument misrepresents

instruct the jury on Nemir’s theory of strict liability; the repeated and unambiguous language of our prior decision.

(2) limiting Nemir’s discovery; (3) excluding an array of We stated plainly, more than once, that Nemir had met his

evidence; and (4) awarding excessive costs to Mitsubishi. burden on the unreasonably dangerous standard. See Nemir

I, 6 Fed.Appx. at 276 (“Plaintiff demonstrates a triable issue

A. Strict Liability of fact with regard to the design defect condition and the

unreasonably dangerous condition of the product.”); id. (“The

Nemir contends that the district court’s refusal to instruct plaintiff’s evidence could lead a reasonable jury to conclude

the jury about his theory of strict liability violated the that the product poses an inherently unreasonable risk.”); id.

mandate that we issued in Nemir I. As we explained above, at 277 (“[Horton’s] testimony creates a jury issue with regards

in originally granting summary judgment to Mitsubishi, the to whether or not the Takata 52 seatbelt is ‘unreasonably

district court held that Nemir had failed to demonstrate that dangerous’ under [Maryland law].”). The district court

the seatbelt suffered from an unreasonably dangerous “design ignored our clear and repeated instructions regarding the

defect” that could underlie a cause of action based on strict submission to the jury of Nemir’s theory of strict liability, and

liability. In Nemir I, we reversed and identified numerous Mitsubishi’s argument to the contrary is plainly without

items of evidence that “demonstrate[] a triable issue of fact merit.

with regard to the design defect condition and the

unreasonably dangerous condition of the product.” Id. at 276. Nemir also argues that even if the strict liability instruction

were not compelled by Nemir I, the district court erred by

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basing its strict liability decision on the testimony of Cooper, necessary in this case to protect the defendants from being

given that his employer counted both Mitsubishi and Takata unduly burdened and unfairly prejudiced if the plaintiffs were

among its past clients, and by misapplying the law governing able to . . . interview these customers ex parte.”

unreasonably dangerous products. Given that the district

court’s decision to preclude the strict liability instruction was Yet the district court offered no relevant explanation of how

erroneous on a more basic level—that it violated our mandate Mitsubishi would be burdened or prejudiced by Nemir’s

in Nemir I—we need not address these arguments. interviewing these consumers, nor is one apparent.

Mitsubishi argues that the restrictions protected its business

B. Discovery interests by shielding its customers from damaging innuendo

about the safety of its products. For support, Mitsubishi relies

Nemir’s claims that the district court improperly limited upon two district court cases: Commodity Futures Trading

discovery also descend from our prior review of this case. In Commission v. Rosenthal & Co., 74 F.R.D. 454 (N.D.Ill

Nemir I, as part of our reversal of the district court’s grant of 1977), and Vokswagen v. Westburg, 260 F.Supp. 636 (E.D.Pa.

summary judgment, we noted that “the district court 1966). Neither supports Mitsubishi’s argument; the plaintiffs

perfunctorily disregarded hundreds of pages of consumer in each of those cases had demanded unfettered access to all

seatbelt complaints. This evidence was released to [Nemir] of the defendant’s customers, even those who had never

in the eleventh hour, after years of discovery disputes over complained about any defects in the defendant’s products. In

whether or not such complaints were discoverable material.” those situations, the courts hesitated to authorize fishing

Nemir I, 6 Fed. Appx. at 275. Indeed, we explained that expeditions that might have tainted the defendants’

“[t]his issue potentially impacts the safety of millions of relationships with their customers.

American consumers and [Nemir] should be granted

sufficient time to fully investigate [his] case.” Id. at 276. Conversely, the customers that Nemir sought to contact had

Nemir argues that the district court failed to do so in a number already complained to Mitsubishi of seatbelt malfunctions.

of ways. The relevance of these customers was already clear, and

interviews by plaintiff’s counsel would likely have served as

1. Protective Order Limiting Discovery little more than a reminder of the seatbelt problems that the

consumers themselves had perceived and articulated.

Nemir contends that the district court erred in prohibiting Mitsubishi’s concerns, then, are speculative, and mere

Nemir’s counsel from unilaterally contacting any of speculation is insufficient to warrant such stringent limits on

Mitsubishi’s complaining consumers. Federal Rule of Civil pretrial investigation. See, e.g., Gottstein v. National

Procedure 26(c) authorizes such a protective order only under Association for the Self Employed, 186 F.R.D. 654, 659

circumstances “which justice requires to protect a party or (D.Kan. 1999) (“Defendants also suggest that they have a

person from annoyance, embarrassment, oppression, or undue legitimate business interest in preventing unrestricted contact

burden or expense,” the potential for which must be with their customers . . . . They present nothing but

illustrated with “a particular and specific demonstration of supposition and conjecture, however, to support finding

fact, as distinguished from stereotyped and conclusory future communications of counsel for plaintiffs will harm

statements.” Gulf Oil Co. v. Bernard, 452 U.S. 89, 102 n. 16 their reputation or profits.”); Multi-Tech Systems v. Hayes

(1981). The district court asserted that the order “was Microcomputer Products, Inc., 800 F.Supp. 825 (D.Minn.

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1992) (“Granting [plaintiff] access to the customers of 188 of the consumer complaints, rather than all 29,000.

[defendant] that it has already discovered during depositions Mitsubishi argued, and the district court agreed, that our

. . . will level the parties playing field . . . . The court declines decision in Nemir I restricted Nemir to investigating only the

to adopt [guidelines that the parties could follow in contacting 188 complaints that we explicitly mentioned in our decision.

each others customers] because guidelines might place too But nowhere did our decision limit Nemir to those 188

great a burden on the parties’ right to garner evidence in incidents. Rather, in describing the relevance of the consumer

support of the prosecution or defense of the claims in this complaints to establishing a dispute of material fact, we noted

case.”); cf. Williams v. Chartwell Financial Services, Ltd., that “[a] complete review of the record indicates that

204 F.3d 748 (7th Cir. 2000) (“The plaintiffs have a right to phraseology analogous to ‘intermittent partial latching’

contact members of the putative class . . . . [t]he district occurred 188 times in the customer complaints submitted as

court’s decision as to [a] protective order must involve a evidence. To summarily dismiss this evidence without

careful balancing of the potential for abuse created by the affording the plaintiff time to investigate and further elicit

class action and the right of the plaintiffs to contact potential information regarding the exact nature of these incidents is

class members.”). clear error.” Nemir, 6 Fed.Appx. at 276.

Moreover, the burden this protective order imposed on Mitsubishi fails to mention that the reason we singled out

Nemir’s investigation was considerable. Rather than being 188 complaints in Nemir I was that the 188 complaints were

able to conduct informal interviews, Nemir was required to the only ones in our appellate record, and served as a sample

coordinate each and every witness interview with Mitsubishi, of the larger set of documents. In other words, we cited the

as well as bear the cost, in both hours and dollars, of formal 188 documents as examples of the 29,000-plus documents

depositions. Perhaps even more importantly, Nemir was that we deemed clearly relevant to the case and worthy of

robbed of the privacy of his attorney’s trial preparation. As further investigation. Mitsubishi’s argument that “[Nemir]

the Supreme Court declared when refusing to compel the has given this Court no good reason to set aside its original

discovery of counsel’s notes stemming from his ex parte ruling and expand investigation discovery even further”

interview of witnesses, “the general policy against invading attempts to concoct a holding that is not even remotely

the privacy of an attorney’s course of preparation is so well discernible from our opinion. See, e.g., First National Bank

recognized and so essential to an orderly working of our of Cincinnati v. Pepper, 547 F.2d 708, 714 (2d Cir. 1976)

system of legal procedure that a burden rests on the one who (Friendly, J.) (“Such a literal application of the language from

would invade that privacy.” Hickman v. Taylor, 329 U.S. this court’s previous opinion . . . is, we think, not at all what

495, 512 (1947). If Mitsubishi’s unsubstantiated fears of the earlier [panel in this case] had in mind.”); United States v.

prejudice justified a protective order, such orders would be Scheipe, 474 F.2d 720, 721 (3d Cir. 1973) (“We are not

justified in virtually every case—a result that would obliterate prepared to give literal efficacy to isolated excerpts from

the essential principle articulated by the Court. language of that opinion which would otherwise [contradict

its holding]”); Continental Motors Corp. v. Continental

2. Limitation to 188 Complainants Aviation Corp., 375 F.2d 857, 861-62 (5th Cir. 1967)

(reversing decision in which district court “gave too much

Nemir further argues that the district court misinterpreted uncritical and literal significance to [an earlier decision]”).

our decision in Nemir I when it limited him to investigating

Nos. 02-1780; 03-1228 Nemir v. Mitsubishi 19 20 Nemir v. Mitsubishi Nos. 02-1780; 03-1228

Motor Corp., et al. Motor Corp., et al.

One caveat remains. When the district court initially sanctions . . . is a question for the district court in the first

limited Nemir to discovery of the 188 incidents, it gave instance. We are not equipped to make a fact finding about

Nemir the option of coming back to the district court to [the defendant’s] alleged bad faith and failure to comply with

request that it be allowed to investigate additional complaints. discovery obligations.” (internal citation omitted)); cf. Mutual

Nemir never did so, and normally this would mean that he Service Insurance Co. v. Frit Industries, Inc., 358 F.3d 1312,

waived his opportunity to interview the other complainants. 1326-27 (11th Cir. 2004) (“Without explanation, it is

However, because we are already remanding for new trial, impossible for us to determine whether or not the district

and because our decision has overturned a separate discovery court acted within the bounds of its discretion.”).

restriction imposed by the district court, there is no reason to

deny Nemir the opportunity to investigate further. Mitsubishi also argues that our decision in Nemir I held that

no sanctionable discovery violation occurred, such that a

3. Refusal to Sanction Mitsubishi contrary determination is now precluded by res judicata. In

support, Mitsubishi points to the following passage from

Nemir argues that the district court erroneously failed to Nemir I: “[T]he district court perfunctorily disregarded

sanction Mitsubishi for obstructing discovery. Federal Rule hundreds of pages of consumer seatbelt complaints. This

of Civil Procedure 37(b)(2) allows a district court to impose evidence was released to the plaintiff in the eleventh hour,

sanctions against a party that “fails to obey an order to after years of discovery disputes over whether or not such

provide or permit discovery.” Nemir argued that his complaints were discoverable material.” Nemir I,

discovery requests included the 29,000 consumer complaints, 6 Fed.Appx. at 275. According to Mitsubishi, our references

but that Mitsubishi persistently maintained that it had no to “years of discovery disputes” constituted a “holding” that

documents corresponding to his request. Nemir also asserts the withholding of the documents was the result of a good-

that he was prejudiced by the delayed production, arguing that faith disagreement, rather than misconduct.

the opportunity to contact many of these potential witnesses

evaporated during the delay, although he is noticeably vague This argument is baseless. Our decision in Nemir I did not

about the reasons for this: did most of the potential witnesses purport to address any of the issues regarding sanctions or

move in the interim? But see Computer Task Group, Inc. v. discovery misconduct. That we characterized, in passing, the

Brotby, 364 F.3d 1112, 1116 (9th Cir. 2004) (per curiam) belated disclosure as coming “after years of discovery

(“[F]ailure to produce documents as ordered is considered disputes” does not mean that Mitsubishi’s hands were clean:

sufficient prejudice.” (internal quotations and alterations the fact that there were disputes does not automatically mean

omitted)). that both sides in the dispute were playing fairly. (If

anything, the tenor of our opinion was critical of Mitsubishi,

Although Mitsubishi contends that the district court noting that Mitsubishi had failed to disclose the documents’

expressly denied Nemir’s motion for sanctions, the record existence until the “eleventh hour” and suggesting that

clearly reveals that the district court stayed consideration of Mitsubishi withheld otherwise discoverable material by

the motion, never to return to it. The district court’s failure to excluding any documents that did not contain a set of

rule on the motion requires that we remand for consideration legalistic magic words. See id. at 275-76.)

anew. See Bacou Dalloz USA, Inc. v. Continental Polymers,

Inc., 344 F.3d 22, 31 n.6 (1st Cir. 2003) (“Whether to impose

Nos. 02-1780; 03-1228 Nemir v. Mitsubishi 21 22 Nemir v. Mitsubishi Nos. 02-1780; 03-1228

Motor Corp., et al. Motor Corp., et al.

As for whether evidence of any discovery misconduct release button, and by improper or incomplete insertion,” id.

should have been admitted at trial, we cannot evaluate that at 274, we held that

claim without first knowing whether any discovery

misconduct occurred, and whether and to what extent any an expert witness’ conclusion regarding all admissible

misconduct prejudiced Nemir. To give one example, it may evidence need not eliminate all other possible causes of

be the case that if Nemir can show that Mitsubishi’s delays injury in order to be admissible on the issue of causation.

prevented him from contacting a large number of relevant Accordingly, Horton could use this evidence to testify

witnesses who could testify to the partial-latching that the partial latch of Dr. Nemir’s seatbelt caused the

phenomenon in their own seatbelts, then evidence of such damage in question. While other possibilities exist with

delay would be a proper rebuttal to Mitsubishi’s arguments regards to causation, the fact that several possible causes

that Nemir has been unable to demonstrate that partial- might remain uneliminated only goes to the accuracy of

latching actually occurs in real life. There may (or may not) the conclusion, not the soundness of the

also be other examples of prejudice, or other possible methodology. . . . The district court, by requiring

remedies. All of this is for the district court to consider in the “specific knowledge of the precise physiological cause”

first instance in conjunction with Nemir’s motion for of the accident held the expert up to entirely too strict a

discovery sanctions. standard when considering the admissibility of their

testimony. The testimony of Horton, establishing

C. Evidentiary Restrictions causation based upon the above referenced facts, would

adequately shoulder the Michigan burden of proof that

Nemir highlights an array of allegedly erroneous plaintiff show a reasonable likelihood . . . that his

evidentiary exclusions, contending that the district court: explanation of the injury is correct.

(1) improperly restricted the testimony of Horton;

(2) unlawfully prevented Manning from testifying at trial; Id. at 275 (emphasis added, internal quotations and citations

(3) mistakenly prohibited evidence about Mitsubishi’s failure omitted).

to investigate other similar consumer complaints; and

(4) hamstrung Nemir’s ability to impeach one of Mitsubishi’s At various points in the opinion, moreover, we identified

expert witnesses. the evidence that would permit Horton to reach his

conclusions. We noted, for instance, that

1. Horton Testimony

[d]uring his deposition, Horton testified that he had

Nemir argues that the district court erred in prohibiting inspected the Nemir seatbelt, and while he did not

Horton from testifying about: (1) the cause of Nemir’s “measure any loads,” he did “check it for partial

injuries; and (2) his tests on Nemir’s buckle. As to the latching.” . . . This document clearly presents evidence

former, Nemir submits that the district court’s barring Horton which would allow Horton to testify that Nemir’s

from testifying about the cause of Nemir’s injuries seatbelt could be put into a position of partial latch, and

contravened Nemir I. After noting that “Horton tested that as such, the seatbelt was defectively designed.

Nemir’s belt buckle and determined that it could be placed

into a state of partial engagement by slightly depressing the

Nos. 02-1780; 03-1228 Nemir v. Mitsubishi 23 24 Nemir v. Mitsubishi Nos. 02-1780; 03-1228

Motor Corp., et al. Motor Corp., et al.

Id. at 271-72 (internal quotations and citations omitted). See understand the evidence or to demonstrate a fact in issue, a

also id. at 274 (“Horton’s examination of the buckle and the witness qualified as an expert by knowledge, skill,

load marks on the jacket could lead a reasonable jury to experience, training, or education, may testify thereto in the

conclude that the seatbelt remained attached until impact, form of an opinion or otherwise.” In Daubert v. Merrell Dow

when it released and retracted, causing damage to the Pharmaceuticals, Inc., 509 U.S. 579, 597 (1993), the

jacket.”). On remand, we instructed the district court that Supreme Court held that before admitting expert scientific

Horton’s testimony regarding causation was admissible. testimony, the district court must determine that the testimony

“rests on a reliable foundation and is relevant to the task at

Despite our mandate, the district court again ruled that hand.” Daubert applies “not just to scientific evidence but to

Horton “cannot testify that partial latching [was] the sole all expert testimony, including testimony based on technical

cause of Nemir’s injuries [because he] does not demonstrate and other specialized knowledge.” Clark v. Chrysler Corp.,

how he arrived at his conclusion . . . or how he eliminated 310 F.3d 461, 466 (6th Cir. 2002), vacated on other grounds,

other possibilities, chief among which is the possibility that Chrysler Corp v. Clark, 124 S.Ct. 102 (2003). Because we

Nemir was not wearing a seat belt.” Nemir, 200 F.Supp.2d at review the screening of expert evidence for an abuse of

776. Because we plainly held in Nemir I that the causation discretion, “the district court has wide latitude to determine

testimony was admissible, the district court’s refusal to admit the admissibility of expert testimony under Daubert”—but

this testimony contravened our explicit mandate. “its discretion is not unbridled.” Hardyman v. Norfolk &

Western Railway Co., 243 F.3d 255, 267 (6th Cir. 2001).

Similarly, the district court prohibited Horton from

testifying about his testing of the buckle. Horton’s The district court found that Horton’s method—in which he

testimony—that twice out of twenty attempts, using manipulated the buckle at varying speeds and angles—was

purposeful manipulation, he was able to cause Nemir’s buckle scientifically unsound because “[n]o reasonable driver

to unlatch—was a critical basis for our decision permitting purposefully manipulates the buckle at different speeds and

Horton to present his conclusions about causation. Although different angles to achieve a state of partial latch as Horton

we did not explicitly state that “Horton’s description of his does.” Yet the point of the purposeful manipulation was to

testing of Nemir’s buckle is admissible at trial,” we could not show that partial latching could occur under certain

have permitted Horton’s causation testimony without circumstances, not to show directly that Nemir’s buckle

permitting him to present the bases for his conclusions. See partially latched during the accident—given the infinite

Jones v. Lewis, 957 F.2d 260, 262 (6th Cir. 1992) (“[T]he trial possible variations, it would have been virtually impossible

court may consider [only] those issues not decided expressly to determine the velocity and angle with which Nemir had

or impliedly by the appellate court or a previous trial court.”) actually buckled his belt on the day in question. Cf. Clark,

(emphasis added). 310 F.3d at 473 (“[I]t is not necessary to prove, as Chrysler

argues, that the prior accidents involved a vehicle identical to

Even if Nemir I did not directly foreclose the district court’s the one driven by [plaintiff] or that all of the circumstances of

decision to exclude Horton’s testing of the buckle, the the accident are identical.”). That most of the combinations

exclusion was nonetheless clearly erroneous. Federal Rule of did not produce partial latching might affect how heavily the

Evidence 702 provides that “[i]f scientific, technical, or other jury weighs the evidence, but not whether it should be

specialized knowledge will assist the trier of fact to admitted.

Nos. 02-1780; 03-1228 Nemir v. Mitsubishi 25 26 Nemir v. Mitsubishi Nos. 02-1780; 03-1228

Motor Corp., et al. Motor Corp., et al.

This purpose was narrow, but vital to Nemir’s case. 52 buckle — can partial latch in a manner that’s

Although Horton was permitted to testify more generally as representative of actual use beyond his sheer speculation.”

to his conclusion that the buckle was capable of partial Reinforcing the harm to Nemir’s case caused by the

latching, Mitsubishi’s central refrain to the jury when prohibition, Mitsubishi argued that “[t]his is serious case.

disputing the buckle’s propensity to partially latch was that You can’t prove your case with just the words of a hired

Horton was just spouting words that were uncorroborated by expert . . . Another federal court, we brought out, rejected

any actual test or demonstration. Thus, before Nemir could Mr. Horton’s testimony for something called, by the court,

convince the jury that partial latching occurred during the parlor tricks. I submit that surely that is why he didn’t

accident, he had to show the jury that partial latching was attempt to demonstrate anything here.” Of course, Horton had

something that could have happened during the accident: in attempted to demonstrate something, and the district court’s

other words, that his buckle was capable of partially latching. exclusion of this demonstration was error.

Merely being allowed to announce his conclusion, sans

support, was unlikely very helpful to Horton’s testimony or 2. Manning Testimony

Nemir’s case. See Rosen v. Ciba-Geigy Corp., 78 F.3d 316,

319 (7th Cir. 1996) (“[A]n expert who supplies nothing but a Nemir also sought to present testimony from court

bottom line supplies nothing of value to the judicial process appointed expert Lindley Manning, who, like Horton, was

. . . .”). And because an individual driver will inevitably able to cause Nemir’s buckle to partially latch. Federal Rule

buckle his seatbelt at varying angles and with varying speeds, of Evidence 706 provides that a court appointed witness

purposeful manipulation would have been the only way to “shall advise the parties of the witness’ findings, if any; the

demonstrate partial latching in a laboratory setting. See witness’ deposition may be taken by any party; and the

Hardyman, 243 F.3d at 262 (finding abuse of discretion when witness may be called to testify by the court or any party.”

district court demanded a method of evaluation that was (emphasis added) Yet the district court, without explanation,

scientifically impossible); Guild v. General Motors Corp., 53 prohibited Nemir from introducing Manning’s testimony.

F.Supp.2d 363, 366 (W.D.N.Y. 1999) (“[P]erfect identity Mitsubishi nevertheless argues that the “plain language” of

between experimental and actual conditions is neither Rule 706 supports the district court’s decision. Yet the plain

attainable nor required.”). Indeed, both of the experts that language of the rule could hardly be more clear in its support

were appointed by the district court used the same technique of Nemir’s position: either the court or any party “may” call

as did Horton to test the buckle, a technique that was the witness to testify. The rule simply does not condition a

appropriate for the conclusion that Horton was asserting. party’s doing so on the district court’s approval, nor does it

maintain merely that the district court “may allow either party

The exclusion of these tests was exploited by Mitsubishi. to call the witness.”

During closing argument, Mitsubishi argued that “they

haven’t shown partial latching to you except in a drawing. Manning’s testimony would have been important to Nemir,

They haven’t shown partial latching of an old buckle, a new for several reasons. First, it would have corroborated

buckle, a used buckle, Dr. Nemir’s buckle, or any TK 52 Horton’s conclusions that the Nemir buckle was capable of

buckle.” Mitsubishi went on to argue that “[i]t’s never been partially latching and had been demonstrated to partially

demonstrated. It’s never been demonstrated. All you have is latch. Given that Manning was court-appointed, rather than

Horton’s words of this. He has no basis to conclude the TK hired by Nemir, a jury would likely have considered his

Nos. 02-1780; 03-1228 Nemir v. Mitsubishi 27 28 Nemir v. Mitsubishi Nos. 02-1780; 03-1228

Motor Corp., et al. Motor Corp., et al.

testimony to be more credible than that of Horton, whom v. Blake, 515 S.E.2d 166, 169 (Ga. 1999) (“Fully aware that

Mitsubishi derided as a “hired gun.” Second, Manning’s the issue was why did the seatbelt not restrain plaintiff, if it

testimony that even infrequent partial latching may constitute did not do so, GM apparently tactically decided not to

a serious defect would have bolstered the weight afforded to conduct a fuller and more complete investigation of the

Horton’s research, which found partial engagement in two out apparatus. Defendant should not be permitted to avoid

of twenty attempts. The erroneous exclusion of this evidence learning the facts by lack of thoroughness and then claim

again undercut Nemir’s case. surprise.”); Daniel v. Indiana Mills & Manufacturing, Inc.,

103 S.W.3d 302, 315 (Mo. App. 2003) (“Plaintiff was

3. Mitsubishi’s Failure to Investigate Consumer permitted, in rebuttal, to use [defendant’s crash test videos] to

Complaints demonstrate that initial unlatching could occur.”); Wiitala v.

Ford Motor Co., 2001 WL 1179610 at *7 (Mich. App. Oct. 5,

Nemir argues that the district court erred in prohibiting him 2001) (“We are also not persuaded by defendant’s argument

from introducing evidence about Mitsubishi’s alleged failure that the test documents uncovered after the violation were

to properly investigate seatbelt-related complaints it had irrelevant because all but one involved buckles other than that

received from other consumers. Evidence of Mitsubishi’s found in plaintiff’s car . . . . given that defendant took the

failure to investigate would probably be inadmissible to prove position at trial that inertial unlatching is simply a ‘parlor

directly the proposition that the buckles are capable of trick,’ we believe the evidence was relevant in that it directly

partially latching. And although such evidence would countered this assertion . . . .”).

probably be admissible to support a case for punitive

damages, see Clark, 310 F.3d at 481 (upholding award of If, during the new trial, Mitsubishi argues that the absence

punitive damages because although aware of possible safety of real-life incidents suggests that partial-latching is a

problems with pickup truck, Chrysler failed to perform laboratory-only phenomenon, Nemir must be permitted to

relevant tests), Nemir’s punitive damages claim has been introduce evidence that the absence of real-life incidents

dismissed. might also signal only that Mitsubishi failed to investigate

such incidents.

But at the first trial, Mitsubishi opened the door:

Mitsubishi argued that Nemir was unable to unearth any 4. Impeachment Evidence

examples of partial-latching occurring in real life. In

response, it would have been important for the jury to know Finally, Nemir seeks reversal based on the district court’s

that one of the reasons that he had been unable to deliver such interference with his impeachment of Dr. Hatsell. As we

evidence was that Mitsubishi had failed to perform explained above, when Nemir attempted to impeach Hatsell

appropriate investigations and/or testing that could have on cross-examination by confronting him with an excerpt

yielded such evidence (with Cooper’s testimony confirming from a book that had been co-authored by Spitz, another

that examination of the buckles would have been appropriate). expert retained by Mitsubishi, the district court instructed

Cf. Beck v. Haik, — F.3d — (6th Cir. July 29, 2004) (“A Nemir to save such questioning for Spitz’s testimony. When

party may also be entitled to special instructions if he can Nemir questioned Spitz about the book, the district court

raise an issue of fact as to whether a party has failed to ignored its prior instructions and prohibited such questioning

preserve relevant evidence.”); cf. also General Motors Corp. as beyond the scope of his testimony. In the end, Nemir was

Nos. 02-1780; 03-1228 Nemir v. Mitsubishi 29 30 Nemir v. Mitsubishi Nos. 02-1780; 03-1228

Motor Corp., et al. Motor Corp., et al.

altogether prohibited from introducing this concededly D. Harmless Error

relevant impeachment evidence.

Mitsubishi argues that any errors made at trial were

Mitsubishi’s defense of the district court’s decision is harmless, given that the errors influenced only the jury’s

spurious. First, Mitsubishi argues that the district court determination whether the seatbelt functioned properly,

correctly refused to allow the impeachment of Dr. Hatsell whereas the jury found that Nemir had not been wearing his

with the book authored by Dr. Spitz because “there is no seatbelt at all. Nemir argues, in contrast, that the jury’s

indication from the record that plaintiff was doing anything determination that he was not wearing his seatbelt was

other than attempting to elicit an opinion from Dr. Hatsell as infected by the errors regarding the effectiveness of the

to the possible opinions of Dr. Spitz regarding brain injuries seatbelt. In other words, posits Nemir, if the jury did not

caused by rotational forces applied to the brain.” This is believe that the seatbelt was ever capable of partially latching,

technically correct but highly misleading: Dr. Spitz’s it would necessarily have attributed Nemir’s injuries to his

published opinions about brain injuries were offered to not having worn his seatbelt at all. When reviewing whether

impeach the contrary conclusions of Hatsell, not to have a claim that an error was harmless, we must reverse “[i]f we

Hatsell comment on Spitz’s upcoming testimony. Nemir do not have a fair assurance that the trial’s outcome was not

sought to impeach Dr. Hatsell with the writings of Dr. Spitz; altered by error.” Beck, — F.3d at —.

his appearance on the witness list was beside the point.

In arguing that Nemir was not wearing his seatbelt on the

Second, Mitsubishi argues that even though the district day of the accident, Mitsubishi relied primarily on evidence

court prohibited Nemir from impeaching Hatsell with the unrelated to the buckle. During closing argument, Mitsubishi

writings of Spitz on the grounds that Nemir would have a argued that Nemir’s memory of the accident was suspect,

chance to elicit the impeaching information directly from thereby casting doubt on his claim that he was indeed wearing

Spitz, “the district court reasonably and properly sustained an the seatbelt. Moreover, Mitsubishi pointed to an array of

objection to this collateral inquiry because it was not a subject physical evidence, independent of the buckle, which it argued

of Dr. Spitz’s testimony in this case.” Mitsubishi again showed that Nemir was not wearing his seatbelt, and also

flagrantly misrepresents the record. Whether the questions argued that the evidence of seatbelt-wearing introduced by

targeted Spitz’s testimony was irrelevant: the questions were Nemir did not show otherwise. It is clear, then, that the jury

designed not to impeach Spitz, but rather to impeach Hatsell reasonably could have found that Nemir was not wearing his

by evincing a contrary opinion. The only reason that Nemir seatbelt at the time of the accident, and could have done so

was impeaching Hatsell with Spitz’s testimony—rather than even if it believed that Nemir’s buckle had the potential to

confronting Hatsell directly with the treatise written by partially unlatch.

Spitz—was that the district court ordered Nemir to proceed

this way. Yet the jury was not required to consider only arguments

that the parties raised during summation. It is a familiar part

Thus, Nemir was erroneously prevented from introducing of any judge’s instructions to a jury that it is bound by the

relevant impeachment evidence. And this impeachment evidence, not by counsel’s closing arguments. See Federal

evidence might have been particularly valuable to Nemir, Jury Practice and Instructions, Civil, 3 FED . JURY PRAC. &

given that it came from Mitsubishi’s own expert. INSTR. § 101.02 (5th ed.) (“After the evidence is presented,

Nos. 02-1780; 03-1228 Nemir v. Mitsubishi 31 32 Nemir v. Mitsubishi Nos. 02-1780; 03-1228

Motor Corp., et al. Motor Corp., et al.

the parties’ lawyers make closing arguments explaining what trees”) until they find one that can account for the calamity.

they believe the evidence has shown. What is said in the Sherlock Holmes observed that ‘when you have eliminated

closing arguments is not evidence.”). Although Nemir’s the impossible, whatever remains, however improbable, must

argument would certainly be stronger if Mitsubishi had more be the truth.’ Courts need not disdain a method that both

frequently argued that the lack of seatbelt deficiency was engineers and detectives find useful.” Bammerlin v. Navistar

itself proof that Nemir was not wearing his seatbelt, that Int’l Transportation Corp., 30 F.3d 898, 902 (7th Cir. 1994)

Mitsubishi’s counsel did not stress this argument does not (Easterbrook, J.) (internal citation omitted).

mean that the jury did not consider it.

Our concern that the errors were not harmless is heightened

In any event, during the opening statement, Mitsubishi told by the case of Babcock v. General Motors Corp., 299 F.3d 60,

the jury that “at the end of the case, you must decide [whether 62 (1st Cir. 2002), a case in which the plaintiff alleged that

Nemir] engaged in the very difficult machinations that the his seatbelt—due to the same partial-latching phenomenon

evidence will show are necessary to cause partial latching or alleged by Nemir—unlatched during an accident. Like our

partial engagement, or that he simply didn’t put his belt on.” case, the plaintiff in Babcock had to convince the jury both

Given that an opening statement is “an outline to help [the that the driver had been wearing his seatbelt and that the

jury] understand what each party expects the evidence to seatbelt was defective. As to the latter, the plaintiff was

show,” id., the jury could very well have viewed the evidence bolstered by the testimony of an expert who had tested the

at trial in light of the either-or framework presented to it by driver’s buckle. See id. at 68. Although the evidence that the

Mitsubishi’s opening statement. And if the jury did view the plaintiff was wearing a seatbelt was arguably weaker than it

evidence this way, deficiencies in evidence about the buckle’s was in our case—the plaintiff’s case was based only on

malfunction could have led the jury to conclude that the testimony about the driver’s habit of always wearing his

seatbelt simply could not have malfunctioned, compelling the seatbelt, whereas Nemir also had some supportive physical

conclusion that Nemir was not wearing it. evidence—the jury found both that the driver was wearing his

seatbelt and that the seatbelt was defective. See id. at 66. Of

Although we are not to presume that a jury disregarded the course, for a host of reasons, this does not compel the

district judge’s instructions when answering the questions in conclusion that in our case, the jury’s determination whether

a special verdict form, see Chute v. Roebuck and Co., 143 Nemir wore his seatbelt was affected by the lack of evidence

F.3d 629, 632 (1st Cir. 1998), we need presume no juror regarding the efficacy of the buckle. But Babcock does

malfeasance to conclude that the jury’s views about the reinforce our conclusion that, as a matter of logic, erroneous

buckle’s reliability may have influenced its determination that evidentiary rulings pertaining to one question had the

Nemir was not wearing his seatbelt. As a matter of logic, the potential to affect the jury’s resolution of the other.

jury could have reasoned that: (1) The only way Nemir could

have received his injuries if he was wearing his seatbelt was Nor does Grimes v. Mazda North American Operations,

if the seatbelt was defective; (2) the seatbelt was not 355 F.3d 566 (6th Cir. 2004), suggest otherwise. In Grimes,

defective; therefore (3) Nemir was not wearing the seatbelt. a case based on similar facts, we held that any error that might

As the Seventh Circuit put it, when reviewing a jury’s verdict have arisen from the exclusion of evidence about prior

in a seatbelt case with similar facts, “[e]ngineers trying to accidents involving defective seat belt latches was harmless,

understand a disaster often follow causal chains (“failure because “[t]he jury returned a special verdict that plaintiff was

Nos. 02-1780; 03-1228 Nemir v. Mitsubishi 33 34 Nemir v. Mitsubishi Nos. 02-1780; 03-1228

Motor Corp., et al. Motor Corp., et al.

not wearing her seatbelt and that this, not design defect, may III. CONCLUSION

have been a cause of her injury.” Id. at 573. Yet in Grimes,

the plaintiff never argued to us that one set of errors affected The judgment of the district court is REVERSED, the

the jury’s analysis of another question, such that the question award of costs VACATED, and the case REMANDED for

before us in today’s case was simply not before us in Grimes. a new trial. Finally, the case is to be assigned to a different

“Questions which merely lurk in the record, neither brought district judge for all further proceedings in this case. To

to the attention of the court nor ruled upon, are not to be minimize confusion about the required course upon remand,

considered as having been so decided as to constitute we summarize the specifics of our decision: (1) Nemir should

precedents.” Webster v. Fall, 266 U.S. 507, 511 (1925). See have been permitted a reasonable opportunity to contact, free

also United States v. Rivera-Guerrero, — F.3d — (9th Cir. of the previous restrictions, the other consumers who filed

Jul. 20, 2004) (relying on quoted language). In any event, the complaints with Mitsubishi; (2) the district court should have

evidence pertaining to seatbelt wearing was far more one- ruled on Nemir’s motion for sanctions based on Mitsubishi’s

sided in the defendant’s favor in Grimes, given that the alleged violations of discovery rules; (3) Nemir should have

plaintiff had told an emergency technician and two nurses that been permitted to present his strict liability theory to the jury;

she had not been wearing her seatbelt. Thus, even if we had (4) Horton should have been permitted to testify both as to

expressly considered such an argument in Grimes, the facts in causation and to his testing of Nemir’s buckle; (5) Nemir

the present case much more strongly suggest that the errors should have been permitted to call Drs. Cooper and/or

affected the trial’s outcome. Manning to testify at trial; (6) Nemir should have been

permitted to impeach the testimony of Dr. Hatsell with the

Ultimately, because we simply do not know whether the writing and/or testimony of Dr. Spitz; and (7) Nemir should

errors pertaining to the functioning of the seatbelt affected the have been permitted to offer, in response to Mitsubishi’s

jury’s determination of whether Nemir was wearing the arguments that partial-latching has never happened in the real

seatbelt, we cannot say with confidence that the errors at trial world, evidence that it declined to perform tests when alerted

were harmless. by consumers of the potential for its buckles to unlatch.

E. Costs

Mitsubishi challenges the costs awarded by the district

court to Mitsubishi. Under Federal Rule of Civil Procedure

54(d)(1), “costs other than attorneys’ fees shall be allowed as

of course to the prevailing party.” Because our reversal of the

judgment for Mitsubishi strips it of its status as the

“prevailing party,” the district court’s award of costs is set

aside.