Lindsey v. Navistar International

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 97-8691

FILED

________________________ U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

D. C. Docket No. 91-CV-1128 08/14/98

THOMAS K. KAHN

CLERK

JACK LINDSEY, Executor of the Estate of

Grace C. Lindsey, Deceased, JACK LINDSEY,

as surviving spouse of Grace C. Lindsey, Deceased,

Plaintiffs-Appellees,

versus

NAVISTAR INTERNATIONAL TRANSPORTATION CORP.,

Defendant-Appellant.

________________________

Appeal from the United States District Court

for the Northern District of Georgia

_________________________

(August 14, 1998)

Before DUBINA and MARCUS, Circuit Judges, and PROPST*, Senior District Judge.

__________________

*Honorable Robert B. Propst, Senior U.S. District Judge for the Northern District of Alabama,

sitting by designation.

MARCUS, Circuit Judge:

Defendant-appellant Navistar International Transportation Corporation (“Navistar”) appeals

from a judgment for plaintiffs-appellees Jack Lindsey individually and as executor of the estate of

his late wife Grace C. Lindsey, entered after a bench trial in this product liability action for damages

resulting from the jackknifing of a tractor-trailer manufactured by International Harvester Company,

Navistar’s corporate predecessor.1 Navistar contends that the district court erred in finding that the

tractor was defective, in concluding that the alleged defect was a proximate cause of the accident

in question, and in awarding allegedly excessive damages to plaintiffs-appellees. After a thorough

review, we conclude that the district court did not err and affirm its judgment.

I.

A.

The Accident

The tragic facts are simple enough. On September 5, 1989, Otis Madison was driving

southbound on U.S. Highway 441 in Oconee County, Georgia, operating a Navistar tractor hauling

an empty flatbed trailer. In front of Madison’s truck, a vehicle had stopped while waiting to turn

left onto County Road 267. Although the truck driver had at least a few hundred feet of

unobstructed visibility, Madison, who was traveling at approximately sixty miles per hour and had

an extensive record of speeding violations, did not begin reacting to the situation in front of him

until much closer to the intersection. Had Madison’s reaction been more timely, or had he been

operating the truck within the posted speed limit, Madison could have brought the truck to a stop

without a collision.

Unfortunately, however, when Madison finally did begin braking, he hit the brakes hard,

and the rear axle locked up. The tractor started to skid, eventually crossing the center line dividing

1

Plaintiffs-appellees also originally sued International Harvester Company. Based on

Navistar’s acknowledgment that it had assumed the liability, if any, of International Harvester

Company for the vehicle at issue, the parties filed a stipulation dismissing that defendant.

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the lanes. Tommy Ballard, who was proceeding northbound on 441 and whose pickup truck was

grazed along the entire left side by the tractor, described the vehicle by stating that the cab of the

truck was facing “directly straight to me.” A bystander whose attention was called to the wreck

when he heard tires “hollering on the pavement” turned to look and saw that the tractor-trailer had

jackknifed, a term used to refer to the clockwise or counter-clockwise rotation of the trailer away

from the tractor. The jackknifed tractor-trailer, which had crossed the center line on a two-lane

highway, smashed into Grace Lindsey, who had been driving behind Ballard going northbound on

441. Immediately after the accident, Mrs. Lindsey was moaning. She responded to questions by

shaking her head, but she did not speak. An ambulance took Mrs. Lindsey to the hospital, where

she died from her injuries soon thereafter. Mrs. Lindsey was thirty years old when she died. She

was survived by her husband, and two sons, who were two-and-a-half years and four months old at

the time of her death.

B.

Procedural Background

Contending that the tractor involved in the accident was defective and unreasonably

dangerous because the design of the brake system increased the likelihood of a “jackknifing” wreck

under the foreseeable circumstances of hard braking while pulling an empty or lightly loaded trailer,

plaintiffs-appellees filed suit in state court in Fulton County, Georgia. Navistar removed the case

to federal court and promptly moved for summary judgment, arguing that the federal regulation

pertaining to truck-braking systems, 49 C.F.R. § 571.121, preempted plaintiffs-appellees’ state law

tort claims. The district court granted Navistar’s motion and entered judgment for Navistar.

Plaintiffs-appellees appealed. Following oral argument, this Court concluded that the federal

regulation did not preempt plaintiffs-appellees’ state law tort claims and reversed the district court.

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Myrick v. Freuhauf Corp., 13 F.3d 1516 (11th Cir. 1994). The Supreme Court granted certiorari,

and, on April 18, 1996, affirmed. Freightliner Corp. v. Myrick, 514 U.S. 280 (1995).

The case then returned to the district court for further proceedings. The matter proceeded

to trial, and, pursuant to the parties’ stipulation, the district judge sat as the trier of fact. It was

uncontested that the jackknifing occurred as a result of the rear axle locking up and the front axle

not receiving enough braking power. Thus, plaintiffs-appellees argued that any one of four

conditions would have prevented the lock-up of the rear axle, and thus, the accident, from occurring:

the presence of antilock brakes, the absence of an automatic limiting valve, the presence of a load-

sensing proportioning valve, or the presence of a manual limiting valve. An automatic limiting

valve reduces the pressure, and hence the brake force, to the front axle of a tractor during certain

braking applications. Thus, plaintiffs-appellees argued that had the tractor not been equipped with

an automatic limiting valve, the brake force would not have been reduced to the front axle. A load-

sensing proportioning valve continuously monitors the load on each axle by measuring the deflection

of the suspension. When the device detects a light load on the rear axle, it proportions more brake

force to the front axle. Plaintiffs-appellees reasoned that the presence of a load-sensing

proportioning valve would have detected the light load on the tractor and proportioned more brake

force to the front axle. As for a manual limiting valve, the driver must adjust a lever on the

dashboard to the heavily or lightly (empty) loaded position. When in the lightly loaded position, the

manual limiting valve reduces the braking power to the rear axle. Plaintiffs-appellees theorized that

a manual limiting valve, if switched to the empty or lightly loaded position, would have reduced the

braking power to the rear axle and avoided the rear axle lock-up. After plaintiffs-appellees

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presented evidence regarding these four alternative designs, Navistar submitted evidence from its

experts regarding each of the four proposed alternative designs.

On June 2, 1997, the district court, after taking extensive trial testimony, entered an order

finding in favor of plaintiffs-appellees. Specifically, the district court concluded that although the

absence of antilock brakes and/or a load-sensing proportioning valve, and/or the presence of an

automatic limiting valve did not render the tractor defective, the absence of a manual limiting valve

did make the truck defective. With respect to antilock brakes, the district court held that no safe,

reliable antilock braking technology was compatible with American-made tractors at the time the

truck in question was built. Consequently, the absence of such technology on the trailer at issue did

not constitute a defect. As for the inclusion of the automatic limiting valve, the district court found

that a hard brake, as employed by the driver in this case, “essentially bypasses an automatic limiting

valve.” As a result, “the automatic limiting valve had little or no effect on the distribution of the

braking force between front and rear axles[,]” and did not cause the accident. The district court

similarly rejected plaintiffs-appellees’ theory that the absence of a load-sensing proportioning valve

constituted a defect in the tractor, noting that such devices do not work well with American-made

vehicles; moreover, increasing the effectiveness of a load-sensing proportioning valve in American-

made vehicles would require the use of air suspension, which would increase the cost of each vehicle

by at least $20,000.

The district court, however, agreed with plaintiffs-appellees that the tractor was defective

because it was manufactured without a manual limiting valve. As noted, a manual limiting valve

basically allows the driver to reduce the brake force to the rear wheels manually when operating a

vehicle in a lightly loaded or empty condition. This adjustment prevents the rear wheels from

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locking up before the front wheels during a sudden stop and thus avoids the conditions that result

in jackknifing. Thus, the district court reasoned that “[i]f the tractor in this case had been equipped

with a manually adjustable limiting valve, which had been properly set by the driver to adjust the

brakes for pulling an empty trailer, then the tractor’s rear wheels would not have locked before the

front wheels and the vehicle would not have jackknifed.” Further finding that at the time the tractor

in this case was manufactured, manual limiting valves were readily available on the American

market at a cost of less than one hundred dollars per truck, the district court determined that the lack

of a manual limiting valve on the tractor in question constituted a defect.

Accordingly, the district court awarded plaintiffs-appellees damages, including $100,000 for

Mrs. Lindsey’s pain and suffering, $5,000,000 for the “intangible” value of Mrs. Lindsey’s life, and

funeral and medical expenses in the amount of $8,361.38, for a total award of $5,108,361.38.

Navistar appeals this judgment.

II.

On appeal, Navistar challenges the district court’s judgment in three respects: (1) Navistar

contends that the district court wrongly concluded that the absence of a manual limiting valve on

the tractor constituted a defect; (2) Navistar argues that the district court erred in finding that the

alleged defect, the absence of the manual limiting valve, was a proximate cause of the accident; and

(3) Navistar challenges the district court’s award of $5,000,000 for the “intangible” value of Mrs.

Lindsey’s life. We consider and reject each contention in turn.

A.

Whether the District Court Erred In Concluding that the

Absence of a Manual Limiting Valve Constituted a Defect

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Navistar contends that the district court’s finding that the absence of a manual limiting valve

constituted a design defect was in error for two reasons: first, Navistar argues that the district court

improperly considered plaintiffs-appellees’ manual-limiting-valve-alternative-design theory because

plaintiffs-appellees allegedly failed to raise the theory until “the middle of trial,” and second,

Navistar contends that even if the district court did not err in considering plaintiffs-appellees’

manual-limiting-valve-alternative-design theory, the absence of such a device did not constitute a

design defect. We are not persuaded.

1.

We review for abuse of discretion the district court’s determination to consider plaintiffs-

appellees’ theory that the absence of a manual limiting device constituted a design defect. See

Randolph County v. Alabama Power Co., 784 F.2d 1067, 1072 (11th Cir. 1986), cert. denied, 479

U.S. 1032 (1987). After conducting a thorough review of the record, we conclude that the district

court did not abuse its discretion in permitting plaintiffs-appellees to press their theory that the

tractor was defective because it lacked a manual limiting valve.

Specifically, Navistar contends that “[f]rom the initial filing of the complaint until the middle

of trial, the plaintiff’s claims focused solely on the contention that Navistar should have equipped

the tractor with an antilock brake system.” Appellant’s Br. at 2. Consequently, Navistar argues, it

“had no opportunity to explore the [manual-limiting-valve or other alternative-design theories] in

discovery or develop any sort of meaningful rebuttal.” Id. at 51.

We note, however, that, unlike antilock brakes, the manual limiting valve, automatic

limiting valve, and load-sensing proportioning valve all operate by re-proportioning braking power

between the front and rear axles of the vehicle. And the record amply reflects repeated references

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by both plaintiffs-appellees and Navistar itself -- the earliest of which occurred six months before

trial -- to the theory that the tractor was defective because it was not equipped with a device that

would re-proportion the braking force in the event of a sudden stop under conditions of a lightly

loaded trailer.

First, Dr. Rudy Limpert, offered by plaintiffs-appellees as an expert in accident

reconstruction and vehicle braking systems, testified during his deposition six months before trial

that Navistar’s failure to better proportion braking forces between the front and rear axles rendered

the tractor defective. Second, in the proposed pre-trial order, filed some five months before trial,

plaintiffs-appellees’ witness list referred to Dr. Limpert’s opinion that “even without antilock

brakes,” the tractor should have been designed with “proper brake balance.” (emphasis added).

This statement unambiguously placed Navistar on notice that (a) plaintiffs-appellees intended to rely

on a theory other than one resting on the absence of antilock brakes, and (b) plaintiffs-appellees’

alternative design flaw theory depended on the concept that Navistar failed to employ technology

that would re-proportion braking force between the axles. Indeed, even Navistar recognized that

plaintiffs-appellees intended to proceed on theories other than the argument that the lack of antilock

brakes constituted a defect. In this regard, Navistar’s outline of its case in the same proposed pre-

trial order claimed that Navistar could not have sold its tractor if it had been equipped with antilock

brakes “or greater front braking power.” Moreover, Navistar’s witness list stated that one of its

experts, Larry Strawhorn, would testify about problems and hazards posed by “heavy front axle

brake forces . . . .” Additionally, in Navistar’s trial brief, Navistar characterized plaintiffs-appellees’

defect contentions to the effect that the vehicle should have had antilock brakes, or “that more power

should have been allocated to the front axle brakes.” Finally, approximately one week before trial,

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the parties joined in moving the district court to accept amendments to the pretrial order. Among

the amendments was Plaintiff’s Factual Summary, which stated, “The International Tractor was also

defective in that the brakes were designed to allow the tractor’s rear wheels to lock while the front

wheels did not, thus creating the conditions which cause jackknifing.” While these references to the

manual limiting valve, automatic limiting valve, and load-sensing proportioning valve did not

explicitly name the devices, they nonetheless plainly put Navistar on notice (1) that plaintiffs-

appellees intended to go forward on a theory other than the one positing that the lack of antilock

brakes caused the accident, and (2) that in proceeding in this way, plaintiffs-appellees expected to

put on evidence showing that the balance of braking power (or lack of control over the braking

power) between the front and rear axles caused the accident. Finally, we note that during the course

of the trial, Navistar never claimed that it was surprised by plaintiffs-appellees’ allegations of defect

dealing with the manual limiting valve. Notably, only after the conclusion of the bench trial and

before the district court ruled, did Navistar raise for the first time its objections to any contentions

of defect other than the failure to provide antilock brakes. The district court considered and rejected

this argument at that time. Under these circumstances, we cannot find that the district court abused

its discretion in permitting plaintiffs-appellees to proceed on their theory involving the manual

limiting valve, which regulates the balance of braking power between the front and rear axles.

2.

Navistar also offers factual and legal arguments in support of its basic contention that the

district court erred in concluding that the absence of a manual limiting valve constituted an

actionable defect. We review for clear error the district court’s factual finding that the tractor-trailer

was defective. See, e.g., Keefe v. Bahama Cruise Line, Inc., 867 F.2d 1318, 1321 (11th Cir. 1989);

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see also Fed. R. Civ. P. Rule 52(a). As long as the district court’s findings are plausible, [the Court]

may not reverse the district court even if [it] would have decided the case differently.” United States

v. Engelhard Corp., 126 F.3d 1302, 1305 (citing Anderson v. Bessemer City, 470 U.S. 564, 574

(1985)). To the extent that the district court’s ruling that the lack of a manual limiting valve

constituted a defect relies on the legal conclusion that a federal regulation identified by Navistar did

not prohibit installation of manual limiting valves on American tractors at the time the vehicle in

question was manufactured, we review that conclusion de novo because it raises a question of law.

See Reich v. Department of Conservation and Natural Resources, 28 F.3d 1076, 1082-83 (11th Cir.

1994).

Turning first to the factual issues, Georgia law, which we are bound to apply by Erie R.R.

Co. v. Tompkins, 304 U.S. 64 (1938), employs a risk-utility analysis in determining whether a

particular design is defective. See Banks v. ICI Americas, Inc., 450 S.E.2d 671, 674 (Ga. 1994).

The risk-utility analysis, which incorporates the concept of “reasonableness” (i.e., whether the

manufacturer acted reasonably in choosing a particular product design, given the probability and

seriousness of the risk posed by the design, the usefulness of the product in that condition, and the

burden on the manufacturer to take the necessary steps to eliminate the risk), essentially requires the

court to balance the risks inherent in a product design against the utility of the product so designed.

Id. at 673-74. In performing this analysis, there is no finite set of factors to be reviewed, although

the Supreme Court of Georgia has suggested several important considerations, including the

following:

1. The usefulness of the product;

2. The gravity and severity of the danger posed by the design;

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3. The likelihood of that danger;

4. The avoidability of the danger, i.e., the user’s knowledge of

the product, publicity surrounding the danger, or the efficacy

of warnings, as well as common knowledge and the

expectation of danger;

5. The user’s ability to avoid danger;

6. The state of the art at the time the product is manufactured;

7. The ability to eliminate danger without impairing the

usefulness of the product or making it too expensive; and

8. The feasibility of spreading the loss in the setting of the

product’s price or by purchasing insurance.

Id. at 736 n.6. Alternative safe design factors include the following:

1. The feasibility of an alternative design;

2. The availability of an effective substitute for the product

which meets the same need but is safer;

3. The financial cost of the improved design; and

4. The adverse effects from the alternative.

Id. As for the benefits aspect of the balancing test, the court may also consider the appearance and

aesthetic attractiveness of the product, its utility for multiple uses, the convenience and extent of its

use (especially in light of the period of time it could be used without harm resulting from the

product), and the collateral safety of a feature other than the one that harmed the plaintiff. Id.

Navistar argues that the district court did not give proper weight to certain considerations

when it conducted the risk-utility analysis. Specifically, Navistar notes that proper use of the

manual limiting device can reduce steerability of the truck, causing the tractor to go out of control.

The district court, however, plainly considered this evidence, but rejected it, stating:

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Navistar introduced evidence that truck operators in this country have

long been concerned that too much brake force on the front axle may

deprive them of steering control in critical situations. While this

appears to be a valid consideration, the evidence was undisputed that

even if a tractor’s front wheels do lock up, the driver can regain

steering control simply by letting up on the brakes. On the other

hand, if the rear axle locks up first and the truck jackknifes, the driver

has no chance of regaining control. Thus, it is not reasonable to

attempt to preserve steering at the cost of causing a jackknife.

Navistar also complains that the district court erred in not fully considering the potential ill

effects of a driver’s failure to disengage the manual limiting valve. In particular, Navistar directs

the Court’s attention to an interim report by the National Highway Traffic Safety Administration

(“NHTSA”) that discusses manual limiting valves and states, “[I]f the driver forgets, for example,

to disengage the system when the vehicle is fully loaded, premature front wheel lockup could occur

on low coefficient of friction surfaces, and, if the vehicle is descending a mountain grade, front

brakes could overheat.” NHTSA, U.S. Dep’t of Transp., No. 806 738, NHTSA Heavy Duty Vehicle

Brake Research Program Report No. 1 -- Stopping Capability of Air Braked Vehicles Volume I:

Technical Report 203 (Apr. 1985) (“NHTSA Report”). The same NHTSA Report, however, also

finds “significant [braking] performance improvements in all cases with the proportioning systems

operational,” including manually controlled proportioning systems (like the manual limiting valve).

Id. at 198. “When there are two permissible views of the evidence, the factfinder’s choice between

them cannot be clearly erroneous.” Anderson v. City of Bessemer, 470 U.S. 564, 574 (1985). Thus,

the district court did not clearly err when it found the improvement of stopping capability to

outweigh the possibility that a driver might forget to deactivate the manual limiting valve and an

accident might result.

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Next, Navistar contends that plaintiffs-appellees presented no evidence that manual limiting

valves were available in the United States at the time the tractor in issue was manufactured, and,

consequently, the absence of such devices from Navistar tractors could not have constituted a defect.

The record reflects, however, that Dr. Rudy Limpert, plaintiffs-appellees’ expert, testified that such

devices were available in the United States at a cost of less than one hundred dollars.2 Moreover,

Navistar did not present any evidence to the contrary. Rather, Navistar argued that although manual

limiting valves were used in Europe in the late 1960's and early 1970's their use was discontinued

because of driver unreliability. The record reflects, however, that at about the same time use of

manual limiting valves in Europe was discontinued, Europe began using a load-sensing

proportioning device that automatically did what the manual limiting valve had previously done

under the control of the driver. Consequently, the manual limiting devices were no longer

necessary.3

2

On appeal, Navistar objects to the testimony offered by plaintiffs-appellees’ experts,

contending that plaintiffs-appellees’ experts should not have been permitted to testify under

Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). Navistar, however, failed

to object to Dr. Limpert’s qualifications, even when the district court ruled that Dr. Limpert was

qualified as an expert in accident reconstruction and vehicle braking systems. We therefore find

that Navistar waived its opportunity to object to Dr. Limpert’s expert qualification. See Carter v.

DecisionOne Corp., 122 F.3d 997, 1004 (11th Cir. 1997). Although Navistar timely objected to

plaintiffs-appellees’ second expert, Erik Carlsson, we need not determine whether the district

court correctly overruled Navistar’s objections and qualified Carlsson as an expert because Dr.

Limpert also testified to all evidence attested to by Carlsson, which is now challenged by

Navistar. Since Dr. Limpert’s testimony supports the same points made by Carlsson and

challenged by Navistar, a finding that the district court erred in qualifying Carlsson as an expert

under Daubert would have no effect on the outcome of the case. We therefore decline to

consider whether the district court properly qualified Carlsson as an expert in accordance with

Daubert and its progeny.

3

Because of the differences in design between European and American tractors,

unfortunately, the load-sensing proportioning device was not financially viable in the United

States at the time that it became so in Europe.

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In short, the district court order reflects that the trial judge thoroughly considered all

applicable Banks factors in ruling that the lack of the manual limiting valve constituted a defect in

the Navistar tractor. Accordingly, we hold that, on this record, the district court’s factual finding

that the absence of the manual limiting valve constituted a defect was not clearly erroneous.

We next address Navistar’s legal argument that its tractor-trailer’s lack of a manual limiting

valve could not have been a defect because 49 C.F.R. § 393.48 prohibited tractor-trailer makers from

equipping their vehicles with manual limiting valves at the time the vehicle in question was

manufactured. NHTSA, as the delegee of the Secretary of Transportation, is charged with the

responsibility of regulating motor vehicle safety through the promulgation of national safety

standards. See 49 U.S.C. § 30111(a). Similarly, the Office of Motor Carrier Safety (formerly

known as the Bureau of Motor Carrier Safety (“BMCS”)), also pursuant to delegation from the

Secretary of Transportation, has authority to prescribe requirements for the “safety of operation and

equipment” of trucks operated by motor carriers. See 49 U.S.C. §§ 104 & 31502(b). Standards

issued by NHTSA and BMCS apply to “all employers, employees, and commercial motor vehicles,

which transport property or passengers in interstate commerce.” 49 C.F.R. § 390.1(a).

Navistar argues that 49 C.F.R. § 393.48, promulgated by the BMCS, “expressly addresses

devices that, like the manual limiting valve at issue, reduce braking power to one axle.” Navistar’s

Initial Br. at 37. In relevant part, that regulation provides as follows:

(e) General rule. Except as provided in paragraphs (b) and (c) of this section, all

brakes with which a motor vehicle is equipped must at all times be capable

of operating.

(f) Devices to reduce or remove front-wheel braking effort. A motor vehicle

may be equipped with a device to reduce the braking effort upon its front

wheels or, in the case of a three-axle truck or truck tractor manufactured

before March 1, 1975, to remove the braking effort upon its front wheels, if

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that device conforms to, and is used in compliance with, the rules in

paragraph (b)(1) or (2) of this section.

(1) Manually operated devices. A manually operated device to

reduce or remove the front-wheel braking effort must not be–

(i) Installed in a motor vehicle other than a bus, truck, or truck tractor;

or

(ii) Installed in a bus, truck, or truck tractor manufactured after February

28, 1975; or

(iii) Used in the reduced mode except when the vehicle is operating under

adverse conditions such as wet, snowy, or icy roads.

(2) Automatic devices. An automatic device to reduce the front-

wheel braking effort by up to 50 percent of the normal

braking force, regardless of whether or not antilock system

failure has occurred on any axle, must not –

(i) Be operable by the driver except upon application of the control that

activates the braking system; and

(ii) Be operable when the pressure that transmits brake control

application force exceeds –

[certain standards]

(c) Towed vehicle. Paragraph (a) of this section does not apply to – [certain

towed vehicles].

Referring to the regulation’s exceptions to permit devices that “reduce or remove” braking force

under certain circumstances, Navistar argues that the requirement that “all brakes . . . must at all

times be capable of operating” must be read to prohibit even devices that merely reduce braking

force or re-proportion braking force between the axles, except as specified in sections (b)(1) and

(b)(2) of the regulation. Because a manual limiting valve re-proportions braking force among the

axles by reducing braking force to the rear axle, Navistar continues, it violates the general

prohibition of the regulation and does not fall into one of the specified exceptions.

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The problem with Navistar’s proposed interpretation is that it reads provisions into the

regulation that are not there. The plain language of the general rule merely requires that, at all times,

all brakes must be “capable of operating”-- that is all. It does not state that all brakes must at all

times be capable of operating at their highest capacity. The manual limiting valve does not render

the brakes incapable of operating; it merely re-proportions braking force between the axles by

reducing braking force to the rear axle. Indeed, the record shows that a tractor-trailer’s braking

system is “capable of operating” more effectively when the manual limiting device is properly

employed. Moreover, section (a) plainly refers to an exception to the requirement that all brakes

“must at all times be capable of operating” for the reason that section (b) discusses devices to

“remove” braking power. Obviously, devices that remove braking power render brakes “[in]capable

of operating.” 49 C.F.R. § 393.48(a). Thus, in the absence of the language in section (a) authorizing

an exception to the general rule that all brakes must at all times be “capable of operating,” removal

of braking force would be in direct conflict with section (a). Nor do the limitations on manually

operated devices expressed in subsection (b)(1) prohibit the use of the manual limiting device.

Whereas the regulation restricts the use of manually operated devices that affect the front-wheel

braking effort, the manual limiting device works by reducing braking power to the rear axle.

Finally, the record suggests that even Navistar may not have found its proposed

interpretation of the regulation plausible. Under Navistar’s proposed construction of the regulation,

all devices that reduce braking force to the rear axle must be prohibited because the exceptions to

the general rule specified by the regulation permit reductions in braking force to the front axle only.

At trial, however, Navistar presented evidence that it considered installing load-sensing

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proportioning valves in its trucks, and it now uses bobtail proportioning valves4 in its vehicles. Both

of these devices operate like the manual limiting valve, reducing the braking force to the rear axle

and re-proportioning the balance of the braking force. In other words, Navistar actually

manufactures its vehicles equipped with devices that act in a manner they claim in this case is

prohibited by the regulation at issue. Suffice it to say, we are no more persuaded by Navistar’s

proposed construction of section 393.48 than is Navistar.

B.

Whether the District Court Erred in Finding that the Absence

of a Manual Limiting Device Was a Proximate Cause of the Accident

Having concluded that the district court did not err in finding that the lack of a manual

limiting valve on the Navistar tractor constituted a defect, we now consider Navistar’s argument that

this defect was not a proximate cause of the accident. This Court reviews for clear error the district

court’s finding that the absence of a manual limiting valve proximately caused the accident. See

Sebree v. United States, 567 F.2d 292, 294 (5th Cir. 1978).

Although plaintiffs-appellees bore the burden of proving that the defect in Navistar’s tractor

was a proximate cause of the accident, Talley v. City Tank Corp., 279 S.E.2d 264, 269 (Ga. Ct. App.

1981), under Georgia law there may be more than one proximate cause of an injury. Dep’t of

Transportation v. Blair, 469 S.E.2d 446, 448 (Ga. Ct. App. 1996) (citing Eubanks v. Business Equip.

Ctr. of Atlanta, 288 S.E.2d 273 (Ga. Ct. App. 1982)); Brown v. Advantage Engineering, Inc., 732

F. Supp. 1163, 1172 (N.D. Ga. 1990). Thus, it is not a “‘defense to an action for an injury resulting

from negligence that the negligence of a third person contributed to cause the injury, if the

4

A tractor operates “bobtail” when it runs without a trailer. A bobtail proportioning

valve, which is activated by the detaching of the trailer, diminishes the amount of braking force

delivered to the rear axle of the tractor.

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negligence of the defendant was an efficient cause without which the injury would not have

occurred.’” Stern v. Wyatt, 231 S.E.2d 519, 521 (Ga. Ct. App. 1976) (citing Rollestone v. Cassirer,

59 S.E.2d 442 (Ga. Ct. App. 1907); Ponder v. McKinzie, 81 S.E.2d 551, 555 (Ga. Ct. App. 1954);

Callahan v. Cofield, 7 S.E.2d 592 (Ga. Ct. App. 1940); Buice v. Atlanta Transit System, 125 S.E.2d

795 (Ga. Ct. App. 1969)). “‘If the original negligent actor reasonably could have anticipated or

foreseen the intervening act and its consequences, then the intervening act of negligence will not

relieve the original actor from liability for the consequences resulting from the intervening act.’”

Eubanks v. Business Equipment Center of Atlanta, Inc., 288 S.E.2d 273, 274 (Ga. Ct. App. 1982).

In the instant case, it was reasonably foreseeable that a driver of a Navistar tractor might

slam on his brakes while his trailer was empty or lightly loaded, and the record reflects that Navistar

was well aware of the profound risk of jackknifing, as well as its cause, locking up of the rear axle.

Indeed, Navistar does not challenge the district court’s finding that the “accident occurred because

the rear wheels on the Navistar tractor locked, causing the vehicle to jackknife. If the rear wheels

had not locked, or if the front wheels had locked before the rear wheels locked, the vehicle would

not have jackknifed and the accident would not have occurred.” Nor does Navistar challenge the

district court’s finding that “the critical factors causing the jackknife were the sudden application

of full braking force and the light load on the tractor’s rear axle.” Navistar similarly does not

dispute the proposition that, if operated correctly, a manual limiting valve could have prevented the

accident.

In apparent recognition of these facts, Navistar focuses its efforts instead on the absence of

direct evidence from the driver stating that he would have activated a manual limiting valve prior

to the wreck, and thus, contends that the district court could not infer that the driver would have

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properly used the manual limiting device, even if the truck had employed one. We find, however,

that testimony from the driver that he would have used the manual limiting valve had one existed

would have been altogether speculative and would have had little, if any, probative value. It is

simply not reasonable to suggest that anyone could meaningfully testify regarding whether he would

or would not have used a certain device about which he knew nothing at the time of the accident and

with which he had no experience at the time of the accident. This, however, does not render the

district court’s finding of proximate cause clearly erroneous.

Rather, the district court need only have concluded, essentially as it did, that it was more

probable than not that the driver would have activated the manual limiting device. See Page v.

Atlanta Center Ltd., 465 S.E.2d 456 (Ga. 1995) (“When a party is relying on inferences to prove a

point, not only must those inferences tend in some proximate degree to establish the conclusion

sought, but must also render less probable all inconsistent conclusions.”). This the district court did,

and the record precludes a finding that the district court committed clear error. We note that use of

the manual limiting valve is not difficult. The driver must simply flip a switch from the fully loaded

to the lightly loaded or empty position. As plaintiffs-appellees point out, use of the manual limiting

valve is no more difficult than use of headlights, a horn, or blinkers. Indeed, it is easier. While a

driver must use a horn or a blinker at the exact time that it is needed, the manual limiting valve is

flipped into the lightly loaded position before the driver ever leaves his departure point, when the

driver becomes aware that he is carrying a light load or an empty trailer. Thus, he need not think

about applying the manual limiting valve at the time of the sudden stop.

Nor are we persuaded by Navistar’s attempt to analogize the instant case to Owens v. Allis-

Chalmers Corp., 326 N.W.2d 372, 379 (Mich. 1982). First, we note that Navistar’s argument, raised

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for the first time in its reply brief, is untimely. See Herman v. NationsBank Trust Co., 126 F.3d

1354, 1364 (11th Cir. 1997), petition for cert. filed, 66 USLW 3774 (May 26, 1998) (citing United

States v. Coy, 19 F.3d 629, 632 n.7 (11th Cir.), cert. denied, 513 U.S. 946 (1994)). Second, even had

Navistar made this argument at the appropriate time, it lacks merit. In Owens, a forklift rolled over,

killing the operator. The plaintiff’s estate argued that the forklift was defective because it was not

equipped with a seat restraint. Other forklift operators who worked at the decedent’s place of

business all testified that they probably would not wear seat restraints if the forklifts were outfitted

with them because the nature of their work required them to get into and out of the forklift many,

many times each day. In addition to the fact that Owens was not decided under Georgia law, it is

plainly distinguishable from the case at hand. Whereas the nature of the Owens decedent’s forklift

duties made use of a seat restraint impractical because his job would have required him constantly

throughout the day to take the belt off and put it on again, notably, a tractor-trailer driver need adjust

the switch only once at the beginning of each haul to the lightly loaded or fully loaded position.

Moreover, other courts have found that the absence of a seatbelt may constitute the

proximate cause of injury. In Miller v. Varity Corp., 922 S.W.2d 821, 826 (Mo. Ct. App. 1996), for

example, the court found,

Plaintiffs’ expert testified that in his opinion, within a reasonable

degree of professional certainty, the decedent would have survived

the roll over if the tractor he had been operating had a roll over

protection system (ROPS) and decedent had been wearing a seat belt.

Defendant’s expert likewise admitted that if the tractor had been

equipped with a ROPS and decedent had been wearing a seat belt, he

would not have been crushed. It was adequate in this case for

plaintiffs to show that but for the absence of the ROPS, decedent

might have survived the roll over.

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Thus, contrary to Navistar’s implication, courts have found that the absence of optional use devices,

like the manual limiting valve at issue here, can constitute proximate causes of injuries, even in the

absence of testimony that the device would have been employed. In this case, without the manual

limiting valve, no chance existed that the driver would use the device, and the accident was doomed

to occur under the circumstances. As the district court found, had the truck been equipped with a

manual limiting device, the driver would readily have had the opportunity to activate it and to

prevent the accident from occurring. Particularly in view of the potential dangers of failing to use

the manual limiting device, we cannot find that the district court committed clear error in concluding

that it was more likely than not that the driver would have employed the manual limiting device, had

one existed.

C.

Whether the District Court Erred in Awarding

$5,000,000 for the “Intangible” Value of Mrs. Lindsey’s Life

Finally, Navistar argues that the district court erred in awarding plaintiffs-appellees

$5,000,000 for the “intangible value” of Mrs. Lindsey’s life. We review the district court’s

conclusions under the clearly erroneous standard. See, e.g., Simmons v. Conger, 86 F.3d 1080, 1084

(11th Cir. 1996).

Navistar contends that a $5,000,000 award solely for the intangible value of a person’s life

must constitute clear error because, they argue, the highest award ever approved by the Georgia

appellate courts solely for the intangible value of a person’s life is $1,000,000 in Consolidated

Freightways Corp. v. Futrell, 410 S.E.2d 751 (Ga. Ct. App. 1991). We disagree. The problem with

this argument is that Futrell merely approves an award of $1,000,000. Except for its

acknowledgment that evidence was presented regarding the character and family circumstances of

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the decedent, and its statement, “[W]e cannot say the jurors’ verdict shocks the conscience, nor is

there any clear indication the jury was biased, prejudiced or grossly mistaken[,]” 410 S.E.2d at 753,

the court did not provide any explanation for its approval of the award of $1,000,000; nor did it

suggest that there was a necessary $1 million cap on all damage awards regardless of the

circumstances. Moreover, defendant-appellant does not direct the Court to any case disapproving

of verdicts larger than $1,000,000. The mere fact that the appellate courts of Georgia have

apparently never been faced with verdicts greater than $1,000,000 for the intangible value of a

person’s life does not necessarily mean that Georgia appellate courts would disapprove of such

awards in all cases.

We further note that the district court heard testimony from several witnesses concerning

Mrs. Lindsey’s life. As we have previously stated, we must be especially careful about reversing

findings of fact based on the district court’s evaluation of live witness testimony because the district

court is “better positioned” to evaluate such evidence. See Jean v. Nelson, 863 F.2d 759, 767 (11th

Cir. 1988), aff’d, 496 U.S. 154 (1990); see also Henson v. Commissioner of Internal Revenue, 835

F.2d 850, 853 (11th Cir. 1988) (quoting Anderson v. Bessemer City, 470 U.S. 564, 575 (1985)); Fed.

R. Civ. P. Rule 52(a). Here, five witnesses testified regarding the details of Mrs. Lindsey’s life and

character. They uniformly spoke of Mrs. Lindsey as a bright, vibrant, and talented woman in the

prime of her life, who was well-liked by her friends and relatives. The witnesses described the

loving relationships between Mrs. Lindsey and her husband and Mrs. Lindsey and her two young

sons, ages two-and-a-half years and four months -- two boys who will grow up without ever really

knowing their mother. While we recognize that $5,000,000 is a significant award, in view of the

circumstances, we cannot say that the district court, which heard all of the testimony and saw all of

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the evidence, committed clear error in finding that the intangible value of Mrs. Lindsey’s life was

$5,000,000.

III.

We therefore conclude that, on this record, the district court did not err in finding that the

lack of a manual limiting valve in the tractor-trailer in question constituted a defect which was the

proximate cause of Mrs. Lindsey’s death, and further, that the district court did not err in awarding

$5,000,000 for the intangible value of Mrs. Lindsey’s life. Accordingly, the judgment of the district

court must be, and is, AFFIRMED.

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