prod.liab.rep. (Cch) P 14,908 Alexander MacDonald (95-6028/6286) v. General Motors Corporation, Defendant-Appellee/cross-Appellant (95-6030/6287)

WELLFORD, Circuit Judge,

dissenting.

While I am in agreement with part I of the majority opinion regarding the admission of evidence as to the negligence of driver Phil Voight and the University of Kansas, I must dissent from parts II and III for the reasons indicated.

A. Choice of Kansas law as applicable to the wrongful death claim.

I differ with the other panel members in their application of North Dakota law to this claim. Mr. and Mrs. MacDonald sued as residents of Bismark, North Dakota, based upon diversity of citizenship. They allege that David was a “resident of the home of the Plaintiffs” when the fatal accident occurred in Tennessee. David MacDonald, however, and other plaintiffs who were passengers in the vehicle, clearly resided in Lawrence, Kansas, immediately before the accident as regular students or faculty at the University of Kansas, as the panel has concluded. 1

The vehicle at issue was sold and delivered to the University of Kansas in Kansas for university use. It was operated, serviced, and kept in Kansas after its acquisition. The vehicle was manufactured in Canada. 2 At the time of the accident, MacDonald and the others were in the vehicle because of their status as University of Kansas students, and it was operated under the aegis of the University by a Kansas resident subject to University policies. Plaintiffs alleged that the vehicle (and specifically its brake system) was defectively maintained in Kansas by the University, contributing to its alleged unreasonably dangerous condition. It is clear that David MacDonald was traveling on a University function. The vehicle was en route to Georgia from Kansas, where the trip originated.

In an amended pretrial order submitted to the district court on June 22,1992, defendant maintained “that Kansas law governs the trial and disposition of the case.” In the *349 final pretrial order, filed on February 1, 1995, any mention of that legal issue was omitted. Later that month, plaintiffs submitted a motion to apply North Dakota law to the measure of damages on the wrongful death claim. Plaintiffs conceded that “Kansas law will be used to determine liability and certain damages issues.”

The parties agree with the district court that Hataway v. McKinley, 830 S.W.2d 53 (Tenn.1992), adopts as a conflicts of law rule the “most significant relationship” approach of the Restatement (Second) for wrongful death. In an affidavit submitted by plaintiffs, the deceased’s brother averred that David paid non-resident tuition to Kansas and retained a North Dakota driver’s license. The affidavit further set out that, after his second year at Kansas, David spent the summer of 1987 living in Minneapolis, Minnesota. It would thus appear that he spent most of his life, from the late summer or early fall of 1986 to the date of the accident, in Kansas and in Minnesota and away from North Dakota. The plaintiffs’ position on applicability of North Dakota law rested almost entirely on the alleged domicile of the deceased and that of his parents. The district court, after consideration of the parties’ positions, ruled that Kansas law should apply. I consider that the district court determined, as a matter of fact, that only the factor of domicile favored the plaintiffs’ assertions. I would affirm the district court in its determination that Kansas, the state of residency and many other contacts, was the state with the most significant relationship.

I am of the opinion that the “center of the relationship” is the most important contact under the circumstances of this case pursuant to the Restatement (Second) on Conflict of Laws. 3 In this case, Kansas was “the center of the relationship,” and the majority concedes this. The majority rested its position almost entirely on the importance of the state of domicile, relying on the reasoning in In re Air Crash Disaster at Boston, 399 F.Supp. 1106 (D.Mass.1975). It is important to note that in that ease both the domicile and residence of the plaintiffs was in Vermont, which was also the place of departure and the expected place of return on the ill-fated plane trip. Air Crash Disaster, 399 F.Supp. at 1112 . These essential facts in Air Crash Disaster, supra, form a clear basis for distinguishing it from the instant case. The only similar circumstance was that the place of injury and death was mere “happenstance,” and, therefore, Massachusetts law did not apply. Id. Vermont was also clearly in that case the center of the relationship and had the most significant contacts.

This court observed in Bowman v. Koch Transfer Co., 862 F.2d 1257 (6th Cir.1988), a conflict of laws decision, that “[sjection 145(2)(c) does not confine itself to consideration of the domicile of the parties, but extends itself to a consideration of their residence.” Id. at 1262 (emphasis added). In Bowman , we determined that the most significant relationship was in Illinois, not in Ohio, the domicile of the plaintiffs. We emphasized, moreover, that plaintiffs had not actually lived in Ohio for one an one-half years. Bowman appears to me to be far more applicable to the facts of this case than Air Crash Disaster, supra. See also Foster v. United States, 768 F.2d 1278 (11th Cir.1985) (holding that the law of residence, not the law of the domicile of the deceased parents, after a plane crash in Lake Michigan, should apply as to wrongful death damages under the “most significant contacts” test).

Patten v. General Motors Corp., 699 F.Supp. 1500 (W.D.Okla.1987), also supports the conclusion that Kansas has the most significant relationship in this ease. Patten emphasized the center of relationship test where the van in question, involved in a Colorado accident, “was titled in Oklahoma, owned by an Oklahoma Bank, and regularly used in Oklahoma by an Oklahoma resident, and was being used by Oklahoma residents at the time of the time of the accident.” Id. at 1505 . The center of the relationship of the parties was found to have great significance because of the scattered multistate contacts involved. Similarly, in our case, *350 Kansas (conceded by the majority to be the state of residence, the “homeplace” of the vehicle, and the “center of the relationship”) was unquestionably the state of the most significant relationship.

Furthermore, the Kansas and North Dakota statutes on wrongful death damages, in my view, deserve equal respect. I cannot agree that this court should adopt a policy to denigrate the Kansas statute which sets a $100,000 cap on non-pecuniary damages whereas the North Dakota statute does not. The Kansas notion of “eliminating excess verdicts that can result from jury sympathy” is neither an unsatisfactory nor an undesirable concept. Kansas surely has a significant interest in protecting its residents and its state university in the application of its wrongful death statute.

Considering the matter of policy of the Kansas law limiting non-pecuniary damages, I would find that Kansas has a declared interest in the measure of damages awarded in wrongful death cases where, as here, residents of Kansas were involved in an accident with a defendant that regularly conducted business in Kansas, and other individual defendants who were residents of and domiciled within Kansas. Kansas has a “strong interest” in its law limiting non-pecuniary damages, and the “fit” between the purpose of its law and “our facts is strong.” See In re Air Crash Disaster Near Chicago, 644 F.2d 594 , 625 (7th Cir.1981) (discussing Restatement (Second) §§ 6, 145, and comment e, denying punitive damages although the law of the domiciliary states of several decedents in the crash would have permitted such damages); see also Bruce v. Martin-Marietta Corp., 418 F.Supp. 837, 839-40 (W.D.Okla.1975) (the law of the place of misconduct and defendant’s place of business prevailed over the domicile of deceased plaintiffs’ law in a conflicts of law situation involving Restatement (Second) in product liability suit), aff'd, 544 F.2d 442 (10th Cir.1976); Bruce v. Martin-Marietta Corp., 418 F.Supp. 829, 833 (W.D.Okla.1975) (arising out of same plane crash, holding that the law of the place where the plane was kept and maintained and place of business of defendant prevailed over law of domicile of deceased plaintiffs under the significant contacts test), aff'd, 544 F.2d 442 (10th Cir.1976).

The majority applies North Dakota law which “would compensate ... fuliy for both pecuniary and non-pecuniary loss,” and would allow plaintiffs to realize a greater recovery than allowed under Kansas law, which would otherwise apply under the center of relationship test and the residency standard. Personal representatives in such situations under the majority rationale would be encouraged to move their domicile to the state affording the most generous recovery for wrongful death. See Huang v. Lee, 734 F.Supp. 71, 75-76 (E.D.N.Y.1990) (applying the law of the decedent’s residence because of the “strong public policy [of New York] to ‘specifically [limit] recovery in wrongful death actions to pecuniary damages’ ” (citation omitted)).

One of the bases for the mistaken decision of the majority is to refer to David MacDonald as “technically a resident of Kansas at the time of his death.” The deceased was, in every sense, truly a resident of Kansas, and had been for some time, as were all of the others involved in the accident. The majority cites only In re Air Crash Disaster at Boston, a district court case, as favoring application of North Dakota law, a case distinguishable from the situation in the instant case. To apply the rule of domiciliary “control” as the majority does, with very little precedential support, would be to bring about different measures of damages if there had been two deaths among the Kansas residents involving persons domiciled in different states. This seems an illogical and unprincipled resulted where the center of relationship admittedly is established in Kansas. 4

*351 B. Judgment notwithstanding the verdict.

The majority observes that plaintiffs are not in disagreement that General Motors “was in compliance with the appropriate regulatory standard relating to design or performance” of the vehicle at issue. The majority also notes that defendant produced undisputed evidence “that the braking system on the van successfully passed the brake performance testing mandated by the National Highway Traffic Safety Administration” (Standard FMVSS 105).

To rebut the presumption following such facts under Kan.Stat.Ann. § 60-3304(a), the vehicle in question is deemed not to be defective “unless the claimant proves by a preponderance of the evidence that a reasonably prudent product seller could and would have taken additional precautions.” Miller v. Lee Apparel Company, 19 Kan.App.2d 1015 , 881 P.2d 576, 584 (1994) (emphasis added). Giving plaintiffs the benefit of their expert’s disputed testimony, at best Dr. Limpert’s testimony indicates his opinion, contrary to the opinion of others at least as well qualified in this regard, that General Motors could or might have improved the design “to be more ‘front-biased,’” and that this would have been safer under the circumstances. Dr. Limpert was critical of the brake balance of many manufacturers, not just GM; he conceded that in tests of the vehicle in question both rears did not lock before the fronts and he was dissatisfied with standards for braking both in this country and in Europe. The proof was undisputed that no vehicle of this type in the world did or would meet Dr. Limpert’s design notions.

The majority does not controvert the authority of Miller . As the Miller court held, “[testimony that a product ‘could have been made a lot safer’ or in alternate ways ... does not create a jury question under K.S.A. § 60-3304(a).” Id. 881 P.2d at 585 (citing Jones v. Hittle Service, Inc., 219 Kan. 627, 631-32 , 549 P.2d 1383 (1976)). The court added:

In Goins v. Clorox Co., 926 F.2d 559, 562 (6th Cir.1991), the court examined a Tennessee statute similar to K.S.A. 60-3304(a) and determined that on a motion for summary judgment the nonmovant must “‘make a showing sufficient to establish the existence of an element essential to that party’s case.’ ” It further held that a plaintiff who fails to introduce any evidence to challenge the defendant’s compliance with federal regulations must be found to have failed to rebut the presumption that a product was not defective.

Id. 881 P.2d at 586 . I would hold that plaintiffs and their expert “failed to overcome the presumption df nondefectiveness created by K.S.A. 60-3304(a).” Id. Reasonable and prudent factfinders could not, from the evidence presented, have found that plaintiffs established, as they must, that “a reasonably prudent manufacturer could and would have taken additional precautions by incorporating any of those safer alternatives into the manufacture” of the vehicle at issue. Id. See also Garst v. General Motors Corp., 207 Kan. 2 , 484 P.2d 47, 60 (1971): “One of the most significant factors is whether others in the field are using the same design ... [and] whether a safer design not yet in use is known to be feasible.” The evidence produced at trial supports the conclusion that a prudent seller would not take any additional precautions, but this was deemed not to be enough without any reference to the Garst decision. I do not believe that reasonable minds could differ as to whether General Motors was entitled to the statutory presumption of non-defectiveness of the brake system.

I would hold that the federal standards on brake performance were clearly met by the defendant, and that plaintiffs failed to meet or establish proof sufficient to overcome General Motors’ showing. I would, therefore, hold that the district court was also in error in not granting defendant’s motion for judgment notwithstanding the verdict.

Accordingly, I DISSENT and would enter judgment for defendant under Kansas law.

. The majority opinion concedes that "the deceased was a resident of Kansas at the time of his death." (Emphasis added.) David had lived in Kansas for the vast majority of the time during the two years prior to his death, and this was the period of his adult life.

. The majority opinion indicates that the vehicle in question was designed in Michigan.

. I would agree with the majority opinion that the place of injury and place of conduct are less important contacts here.

. The majority cites Restatement (Second), Conflict of Laws, § 178 cmt. b, as emphasizing the importance of domicile. But that is so “[i]n a situation where one state is the state of domicile of defendant, the decedent and the beneficiaries.” (Emphasis added.) North Dakota, of course, is not the state of domicile of the defendant, or any original defendant. All parties were residents of Kansas. The majority opinion in another part refers to MacDonald as "merely a resident.” Why is it more accurate to say that the deceased, who had been away from North Dakota most of his adult life, was “technically” or "merely” domiciled there? One wonders where he would *351 have established domicile after graduation from the University of Kansas.