Petition for Writ of Certiorari — Ford Motor Co. v. King

No. 00-430 sep 1 1 om

SSS

du The

Supreme Court of the Hnited States

FORD MOTOR COMPANY and

MAZDA MOTOR CORPORATION,

Petitioners,

v.

CHARLES KING, as Administrator of the Estate of

Patti Ann King; AMANDA SUE KING, by and through

her next friend Charles King; and ASSOCIATED

INSURANCE COMPANIES,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

Rosewell Page, ITI

E. Duncan Getchell, Jr.*

David H. Worrell, Il

William H. Baxter, II

MCGUIREWOODS LLP

One James Center, 901 East Cary Street

Richmond, Virginia 23219-4030

(804) 775-1000

B. Todd Thompson

Millicent A. Tanner

THOMPSON & MILLER PLC

220 West Main Street, Suite 1700

Louisville, Kentucky 40202

(502) 585-9900

LANTAGNE LEGAL PRINTING

801 East Main Street Suite 100 Richmond, Virginia 23219 (800) 847 0477

QUESTION PRESENTED

Whether this Court should grant a writ of certiorari,

vacate the panel decision of the United States Court

of Appeals for the Sixth Circuit in King v. Ford

Motor Co., 209 F.3d 886 (6th Cir.), reh’g denied,

2000 U.S. App. LEXIS 15297 (6th Cir. June 12,

2000), and remand for further consideration in light

of this Court’s recent decision in Geier v. American

Honda Motor Co, __US._, 120 S. Ct. 1913,

146 L. Ed. 2d 914 (2000)?

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CORPORATE DISCLOSURE STATEMENT

Pursuant to Sup. Ct. R. 14(1)(b) and 29.6, Ford

Motor Company discloses that it has no parent corporation

and that there is no publicly held company that owns more

than 10% of its stock. Mazda Motor Corporation discloses

that it has no parent corporation. Ford Motor Company

owns 33.4% of the stock of Mazda Motor Corporation.

iil

TABLE OF CONTENTS

SE WNT RMON sc a.cacsssacscasscsesnnaisndedasssesnvsssnecnarence i

Whether this Court should grant a writ of certiorari,

vacate the panel decision of the United States Court of

Appeals for the Sixth Circuit in King v. Ford Motor Co.,

209 F.3d 886 (6th Cir.) reh’g denied, 2000 U.S. App.

LEXIS 15297 (6th Cir. June 12, 2000), and remand for

further consideration in light of this Court’s recent

decision in Geier v. American Honda Motor Co., ___

US. , 120 S. Ct. 1913, 146 L. Ed. 2d 914 (2000)?... i

CORPORATE DISCLOSURE STATEMENT .................... il

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STATEMENT OF JURISDICTION ..................0.0c ccc l

CONSTITUTIONAL AND STATUTORY

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REASONS FOR GRANTING THE WRIT .......0.00..0..00.00000.. 5

THIS IS A CLASSIC CASE FOR APPLICATION

OF THIS COURT’S GVR PROCEDURE ...................... 5

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TABLE OF AUTHORITIES

FEDERAL CASES |

:

Geier v. American Honda Motor Co., 120 S. |

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King v. Ford Motor Co., 209 F.3d 886 (6th Cir.),

reh'g denied, 2000 U.S. App. LEXIS 15297

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Thomas v. American Home Products, Inc., 519

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CONSTITUTIONAL PROVISIONS

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FEDERAL STATUTES AND REGULATIONS

15 U.S.C. § 1392(a) recodified at 49 U.S.C.

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FEDERAL AND COURT RULES

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Petitioners Ford Motor Company and Mazda Motor

Corporation [collectively “Ford”] respectfully request that a

writ of certiorari be issued to review the judgment of the

United States Court of Appeals for the Sixth Circuit in this

case; that the judgment below be vacated; and that this case

be remanded for further proceedings in conformity with this

Court’s opinion in Geier v. American Honda Motor Co., 120

S. Ct. 1913 (2000).

OPINIONS BELOW

The opinion of the United States Court of Appeals for

the Sixth Circuit is published as King v. Ford Motor Co., 209

F.3d 886 (6th Cir.), reh’g denied, 2000 U.S. App. LEXIS

15297 (6th Cir. June 12, 2000), and is contained in the

Appendix at A-17 through A-43.

The judgment, orders and rulings denying motions

for judgment as a matter of law and for a new trial of the

United States District Court for the Eastern District of

Kentucky are unpublished and are contained in the Appendix

at A-1 through A-16.

STATEMENT OF JURISDICTION

The judgment of the United States Court of Appeals

for the Sixth Circuit was entered on April 19, 2000. Ford’s

timely Motion for Panel Rehearing was denied on June 12,

2000. This petition for writ of certiorari is timely filed

within 90 days from that date. Sup. Ct. R. 13.3. This Court

has jurisdiction to review the order of the court of appeals on

a writ of certiorari pursuant to 28 U.S.C. § 1254.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

U.S. Const. art. VI, § 2 (“This Constitution, and the

Laws of the United States which shall be made in Pursuance

thereof; and all Treaties made, or which shall be made, under

the Authority of the United States, shall be the supreme Law

of the Land; and the Judges in every State shall be bound

thereby, any Thing in the Constitution or Laws of any State

to the Contrary notwithstanding.”)

Title I, § 103, National Traffic and Motor Vehicle

Safety Act, (“the Safety Act”), formerly codified at 15

U.S.C. § 1392(a), now codified at 49 US.C. § 30111

(relevant excerpts are contained in the Appendix at A-48).

Federal Motor Vehicle Safety Standard 208

(“FMVSS 208”), 49 CFR § 571.208 (relevant excerpts are

contained in the Appendix at A-49 through A-52).

STATEMENT OF THE CASE

In a decision issued on April 19, 2000, the United

States Court of Appeals for the Sixth Circuit held that

Plaintiffs’ claims based on alleged defects in a passive seat

belt design specifically permitted by federal regulation were

not preempted by the Safety Act. The decision was based

upon the conclusion that Plaintiffs’ claims were not

preempted because Plaintiffs had not argued “‘that the

design choice made by defendants for protecting against

frontal collisions — an automatic shoulder belt and knee

bolster — was inherently defective... .,”” King, 209 F.3d at

892 (citation omitted), but instead had challenged the

implementation of the permitted design.

On May 3, 2000, Ford timely moved for a panel

rehearing. On May 22, 2000, this Court decided Geier v.

American Honda Motor Co. _ US. ___, 120 S. Ct.

1913, 146 L. Ed. 2d 914 (2000), holding that a state law tort

action challenging a passive-restraint/airbag design choice

specifically permitted by FMVSS 208, 49 C.F.R. § 571.208,

in order to promote federal safety policies, was preempted.

In Geier the United States Court of Appeals for the

District of Columbia Circuit had held that dismissal of “no-

airbag” claims was proper “under ordinary pre-emption

principles” because “petitioners’ state-law tort claims posed

an obstacle to the accomplishment of FMVSS 208’s

objectives” of permitting design choices. /d. This Court

affirmed, making it clear that ordinary conflict preemption

analysis applies to the Safety Act and its implementing

regulations. /d. at 1928.

If ordinary conflict principles apply-here, the district

court erred because, although Plaintiff had attacked the

implementation of the permitted design, the district court

also allowed the case to go to the jury with testimony that the

permitted design was itself defective. It is as

unconstitutional under Geier to submit a case to the jury

when it rests upon preempted claims only in part as it is to

submit a case resting entirely upon preempted claims.

Ford’s Motion for Panel Rehearing was denied on

June 12, 2000. King v. Ford Motor Co., 2000 U.S. App.

LEXIS 15297 (6th Cir.). Appendix at A-44. On June 19,

2000, Ford filed its Motion to Stay the Mandate, arguing that

the panel decision conflicted with Geier because Plaintiffs

had not limited their claims and trial evidence to an attack on

the implementation of one of the restraint choices authorized

by FMVSS 208, but had also attacked as defective the actual

restraint choice authorized and encouraged by FMVSS 208

to promote federal safety policies. Indeed, Count II of the

Complaint alleged that the choice of this federally authorized

restraint was “unreasonably dangerous” and not “reasonably

safe.” (Final Br. Appellants at 23 & n. 4) (quoting R.1

Compl., pgs. 4-5, Apx. pgs. 34-35). Plaintiffs never

amended or withdrew this claim. (/d. at 23.) Instead, their

expert witnesses attacked the federally permitted type of

restraint generically, charging that this type of restraint lulled

consumers into a false sense of security. (/d. at 24) (citing

Day II Tr., p. 153. Apx. pg. 683); (id.) (citing Day IV Tr., pp.

72, 44, Apx. Pgs. 1014, 986); (id. at 25) (quoting Day III Tr.,

p. 102, Apx. Pg. 812).

Under Federal Rule of Appellate Procedure

41(d)(2)(A), a party may “move to stay the mandate [of the

court of appeals] pending the filing of a petition for a writ of

certiorari in the Supreme Court.” The Sixth Circuit provides

through Local Rule 41(a) that a stay may issue upon “a

showing, or an independent determination by th{e] Court,

that a petition for writ of certiorari would present a

substantial question and that there is good cause for a stay.”

Ford argued that because the panel decision in this case

actually conflicts with this Court’s analysis in Geier, it

presented an excellent candidate for “GVR” by this Court.'

(Appellants Mot. Stay Mandate Pending Filing Pet. Writ

Cert. at 2-4.)

The court of appeals evidently agreed because it

granted Ford’s Motion to Stay the Mandate by order dated

July 20, 2000. See Sixth Circuit I.0.P. 41(d) (motion to stay

' The term “GVR” describes this Court’s practice of “granting certiorari,

vacating the judgment below, and remanding for further proceedings in

light of intervening developments ... .” Thomas v. American Home

Prods., Inc., 519 U.S. 913, 913 (1996) (Scalia, J., concurring) (emphasis

in original).

mandate referred to the judge who authored the opinion). A

copy of this order is contained in the Appendix at A-46.

REASONS FOR GRANTING THE WRIT

THIS IS A CLASSIC CASE FOR APPLICATION

OF THIS COURT’S GVR PROCEDURE.

As Justice Scalia stated in his concurring opinion in

Thomas v. American Home Prods., Inc., 519 U.S. 913, 915

(1996) (Scalia, J., concurring), this Court “routinely” GVR’s

“a case affected by one of [its] own intervening decisions”

without regard to the intrinsic importance of the case being

GVR'd. Because Geier has intervened, establishing a rule

for conflict preemption that does not distinguish between

cases resting wholly or in part upon preempted theories of

defect, GVR here should be routine. Because the Sixth

Circuit has granted a stay of the mandate under a standard

requiring it to find that this Petition presents a substantial

question, use of the GVR process is especially appropriate.

CONCLUSION

WHEREFORE this Petition should be granted, the

decision below vacated, and the case remanded for further

proceedings in light of Geier.

Respectfully Submitted,

FORD MOTOR COMPANY AND

MAZDA MOTOR CORPORATION

Rosewell Page, III

E. Duncan Getchell, Jr.*

David H. Worrell, II

William H. Baxter, II

McGUIREWOODS LLP

One James Center

901 E. Cary Street

Richmond, Virginia 23219-4030

(804) 775-1000

B. Todd Thompson

Millicent A. Tanner

THOMPSON & MILLER PLC

220 West Main Street, Suite 1700

Louisville, Kentucky 40202

(502) 585-9900

*Counsel of Record

\\PRO\40911.1

No.

Le

Jn The

Supreme Court of the Anited States

FORD MOTOR COMPANY and

MAZDA MOTOR CORPORATION,

Petitioners,

Vv.

CHARLES KING, as Administrator of the Estate of

Patti Ann King; AMANDA SUE KING, by and through

her next friend Charles King; and ASSOCIATED

INSURANCE COMPANIES,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

APPENDIX

Rosewell Page, III

E. Duncan Getchell, Jr.*

David H. Worrell, II

William H. Baxter, I

MCGUIREWOODS LLP

One James Center, 901 East Cary Street

Richmond, Virginia 23219-4030

(804) 775-1000

B. Todd Thompson

- Millicent A. Tanner -

THOMPSON & MILLER PLC

220 West Main Street, Suite 1700

Louisville, Kentucky 40202

(502) 585-9900

*Counsel of Record for Petitioners

ceeaeeeeneeeeieennaeneannnaeen ean een aie nd

LANTAGNE LEGAL PRINTING

801 East Main Street Suite 100 Richmond, Virginia 23219 (800) 847-0477

A-1

APPENDIX

I. In-Court Ruling Denying Judgment as a

Matter of Law

THE COURT: With regard to the design

defect being - the design defect theory of Count 1

being preempted, I am denying that motion as well.

Merely complying with the safety standard isn’t

enough here. There is a savings clause. In this

particular instance the plaintiffs theory does not

remove or require any particular choice. And the

defendant remains liable for - under a common law

theory, if the jury finds that the defendant should be

liable.

So I am denying your motion on the ground

as well. And I guess by deduction, you - you would

understand that I am denying your last ground which

was, I think, that if I find for you on the preemption

theory, that the failure to warn claim also goes out of

the case.

[April 1, 1999]

A-2

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF KENTUCKY

LONDON DIVISION

CIVIL ACTION NO. 95-117

CHARLES KING, as administrator of the

ESTATE OF PATTI ANN KING, PLAINTIFF,

v. ORDER AMENDING JUDGMENT

FORD MOTOR COMPANY and

MAZDA MOTOR COMPANY, DEFENDANTS.

ASSOCIATED INSURANCE COMPANIES,

INC.,

INTERVENING PLAINTIFF,

Vv.

FORD MOTOR COMPANY, MAZDA MOTOR

COMPANY, and CHARLES'- KING, sas

administrator of the ESTATE OF PATTI ANN

KING,

INTERVENING DEFENDANTS.

RERKKAKKARKEKER

The intervening plaintiff, | Associated

Insurance, has moved (Record No. 173) for a post-

judgment award in recognition of its subrogation

rights, and the plaintiffs, Charles King, as

administrator, and Amanda Sue King, have moved

(Record No. 174) to alter or amend the judgment to

separate the damages awarded to the plaintiffs and to

indicate post-judgment interest pursuant to 28 U.S.C.

}

4

3

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icin

A-3

§ 1961(a). Upon review of the record, and the Court

being advised,

IT IS ORDERED that the motions are

GRANTED to the extent that the judgment is

AMENDED as follows:

This action came before the Court for a trial

by jury. The issues have been tried and the jury has

rendered its verdict with answers to interrogatories

and supplemental answers to interrogatories. The

Court having detected an error in addition in

Interrogatory No. 12 finds the total compensatory

damages related to Patti King to be $1,343,245.91

instead of $1,344,245.91. This total includes

$76,827.05 attributable to medical expenses paid by

the intervening plaintiff. Accordingly,

IT IS ORDERED AND ADJUDGED that

the plaintiff, Charles King, as administrator, have and

recover of Ford Motor Company and Mazda Motor

Corporation, jointly and severally, compensatory

damages in the sum of $823,172.26 plus interest at

the rate of 5.391% per annum from April 3, 1998,

until paid; that the plaintiff, Amanda Sue King, have

and recover of Ford Motor Company and Mazda

Motor Corporation, jointly and __ severally,

compensatory damages in the sum of $975,000.00

plus interest at the rate of 5.391% per annum from

April 3, 1998, until paid; and that the intervening

plaintiff, Associated Insurance Companies, Inc., have

and recover of Ford Motor Company and Mazda

Motor Corporation, jointly and __ severally,

compensatory damages in the sum of $49,937.58 plus

interest at the rate of 5.391% per annum from April

3, 1998, until paid. The defendants shall pay the

costs of this action.

A-4

This the 9th day of June, 1998.

/s/ Jennifer B. Coffman

Jennifer B. Coffman, Judge

United State District Court

Eastern District of Kentucky

A-5

FILE COPY

UNITED STATES DISTRICT COURTT

EASTERN DISTRICT OF KENTUCKY

June 10, 1998

Case Number: 6:95-cv-00117

Carl G. Cunnagin

Samuel E. Davies

Michael A. Vescio

Lionel A. Hawse

Bryan Todd Thompson

David H. Worrell, Jr.

Rosewell Page III

Todd R. Seaver

David T. Schaefer

William D. Grubbs

Certificate of Mailing by /s/ NHS.

A-6

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF KENTUCKY

AT LONDON

FILE NUMBER 95-117

CHARLES KING, AS

ADMINISTRATOR OF

THE ESTATE OF PATTI

ANN KING PLAINTIFF

AMANDA SUE KING, -

BY AND THROUGH

HER NEXT FRIEND,

CHARLES KING

INTERVENING

PLAINTIFF

V.

FORD MOTOR COMPANY and

MAZDA MOTOR

CORPORATION DEFENDANTS

ASSOCIATE INSURANCE

COMPANIES, INC.

INTERVENING

PLAINTIFF

V.

MAZDA MOTOR

CORPORATION;

FORD MOTOR COMPANY and

CHARLES KING,

AS ADMINISTRATOR

OF THE ESTATE OF

PATTI ANN KING

A-7

INTERVENING

DEFENDANTS

ORDER

The Defendants having filed a renewed

motion for judgment as a matter of law and the Court

having considered the memoranda filed in support of

and in opposition to said motion and being otherwise

sufficiently advised, the Court finds that the case was

properly submitted to the jury for decision.

Accordingly, Defendants’ renewed motion for

judgment as a matter of law IS HEREBY

OVERRULED.

This the 9” day of June, 1998.

/s/ Jennifer B. Coffman

JUDGE, UNITED STATES DISTRICT

COURT

DISTRIBUTION:

Hon. Samuel E. Davies

P.O. Box 10

Barbourville, Kentucky 40906

Hon. Carl Cunnagin

P.O. Box 155

McKee, Kentucky 40447

Hon. B. Todd Thompson

Hon. Millicent A. Tanner

Dinsmore & Shohl, LLC

2000 Meidinger Tower

Louisville, Kentucky 40202

Rosewell Page, III, Esq.

David H. Worrell, II, Esq.

McGuire, Woods Battle & Boothe

One James Center

901 East Cary Street

Richmond, Virginia 23219-4030

Hon. Todd R. Seaver

Distler & Seaver, PLLC

2821 Hurstborne Lane, #8

Louisville, Kentucky 40220

CLERK DATE

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF KENTUCKY

June 10, 1998

Case Number: 6:95-cv-00117

Carl G. Cunnagin

Samuel E. Davies

Michael A. Vescio

Lionel A. Hawse

Bryan Todd Thompson

David H. Worrell, Jr.

Rosewell Page III |

Todd R. Seaver

David T. Schaefer

William D. Grubbs

Certificate of Mailing by /s/N HS

A-10

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF KENTUCKY

AT LONDON

CIVIL ACTION NO.: 95-117

CHARLES KING, as Administrator of the

Estate of Patti Ann King, PLAINTIFF,

VS: ORDER

FORD MOTOR COMPANY, et al.,

DEFENDANTS.

x*xXkKk KK KK K *

Following a jury trial, the defendants, Ford

Motor Company and Mazda Motor Company

(collectively “Ford”), moved for a new trial. For the

reasons stated below, the court will deny this motion.

(1) The court did not err by declining to

send the jury back for further deliberations after

clarifying whether the verdict was unanimous.

In the trial of the instant case, after the jury

returned its verdict -- a unanimous verdict, according

to the foreperson -- counsel for Ford requested that

the jury be polled. The clerk then stated to the jury,

“The question before you is, is the answer to the

verdict your answer? And please answer yes or no.”

When the clerk called the name of Juror No. 12,

Raymond Wynn, Wynn answered, “Here,” instead of

saying either “yes” or “no.” The district judge did

not detect the discrepancy, nor did either party

mention it. The court then directed that a judgment

—

x

A-1]

be prepared in accord with the verdict. Neither party

objected. The court then discharged the jury. Again,

neither party objected.

After being discharged, the jury members rose

from their seats, exited the jury box and were

walking behind plaintiff's counsel table, when the

court reporter advised the court of Mr. Wynn’s

erroneous response. Although the jury had already

been discharged, with all parties and the court

apparently satisfied that the verdict was unanimous,

the district judge stopped the jurors’ departure from

the courtroom. Then the court and Mr. Wynn

exchanged the following dialogue:

THE COURT: And that was which

one? The gentlemen in the blue

checked shirt. Are you Mr. Wynn?

A JUROR: Yeah. Number 12.

THE COURT: All right. I need to

know from you whether the verdict

that was rendered represents your own

verdict. Yes or no?

A JUROR: No.

THE COURT: I’m sorry?

A JUROR: He can’t hear you.

THE COURT: I’m sorry, I don’t have

the microphone on.

A-12

I need to know whether the verdict

that was returned represents your

verdict.

A JUROR: No.

THE COURT: Do you by saying no,

are you saying you do not agree with

the verdict?

THE JUROR: I agree with it, yeah,

all of it.

THE COURT: All right. What do

you mean when you Say it’s not your

verdict? I just want to know if you

agree with it or not agree with it.

A JUROR: I agree with it, what we

put down. :

THE COURT: All right. Thank you.

Is there any further need to approach

the bench on that?

Terming the verdict unanimous, the court then denied

Ford’s motion for a mistrial and reiterated that a

judgment would issue in accord with the verdict.

The purpose of the in-court poll of the jury is

to determine whether the verdict is truly unanimous.

United States v. August, 984 F.2d 705, 711 (6th Cir.

1992). If a juror dissents, the trial judge should

clarify confusion, if it appears to exist, but should not

say anything which could be construed as coercing a

juror into a unanimous verdict. Williams v. United

States, 419 F.2d 740, 744-47 (D.C. Cir. 1969); Curry

A-13

v. Moore-McCormack Lines, Inc., 51 F.R.D. 301, 303

(S.D.N.Y. 1970).

Here, the court had already discharged the

jury, with everyone (except, apparently, the court

reporter) convinced that the verdict was, indeed,

unanimous. Arguably, that should have ended the

matter. A defendant who does not object to the

discharge of a jury following the poll of the jury

waives its right to claim a lack of unanimity, and in

effect concedes that the verdict is unanimous. Cf

Toucet v. Maritime Overseas Corp., 991 F.2d 5, 8

(Ist Cir. 1993) (objection to inconsistent verdict is

waived if party fails to object before the jury is

excused).

However, the court did not leave the matter as

it stood. Upon hearing some indication of dissent or

confusion, the court inquired of the juror who had

appeared to equivocate. The exchange between the

court and the juror was aimed at clarifying confusion

-- confusion which was evident in the tone and

manner of the juror’s negative, perplexed response.

Therefore, twice the trial judge sought clarification

but did not stray across the line into coercion. The

court would have been coercive if it had either asked

leading questions, displayed impatience, or ignored a

clearly dissenting voice. Instead, the court struck the

proper balance and the confusion was ended.

The jury verdict was unanimous, and Ford’s

motion for a new trial on this ground will be denied.

2. The court did not err by returning the

jury to its deliberations after initially receiving an

inconsistent verdict.

A-14

When “it initially received an inconsistent

verdict, the court exercised its discretion under

Fed.R.Civ.P. 49(b) and returned the jury for further

deliberations, after giving the jury a supplemental

instruction. The jury was permitted to reconsider all

of its answers to the verdict interrogatories, and not

merely to those which were inconsistent.

The inconsistency turned upon a question

asked by the jury during deliberations: uncertainty

about the meaning of the word “substantial.” When

asked to define the term, the court instead referred

the jurors to their instructions. However, the jury

apparently did not resolve its confusion by re-reading

the instructions. Their initial verdict reported that the

plaintiff's failure to exercise due care was not a

substantial factor in the accident, on the one hand, but

that the plaintiff's failure to exercise due care was

responsible for ten percent of the fault in the

accident, on the other hand.

This obvious inconsistency was resolved after

the court gave a supplementary instruction which

called attention to the requirement that both failure to

exercise ordinary care and causation be found before

fault could be assigned, and returned the jury for

additional deliberations. The final verdict contained

no inconsistency. Thus the incompatibility within the

initial answer was not as “hopeless” as Ford

contends. The motion for a new trial will thus be

denied on this ground as well.

3. The trial court did not err by excluding

certain matters from Ford’s expert testimony or

by admitting evidence regarding Amanda King’s

loss of consortium claim.

il

A-15

For reasons stated on the record at trial, these

evidentiary rulings were correct, and thus neither of

these grounds will persuade the court to order another

trial.

Accordingly, the defendant’s motion is

DENIED.

This the 16th day of June, 1998.

/s/ Jennifer B. Coffman

JENNIFER B. COFFMAN, JUDGE

U.S. DISTRICT COURT

EASTERN DISTRICT OF KENTUCKY

C:/WPDOCS/ORDERS/95-117.MEM

A-16

UNITED STATES DISTRICT COURTT

EASTERN DISTRICT OF KENTUCKY

June 16, 1998

Case Number: 6:95-cv-00117

Carl G. Cunnagin

Samuel E. Davies

Michael A. Vescio

Lionel A. Hawse

Bryan Todd Thompson

David H. Worrell, Jr.

Rosewell Page III

Todd R. Seaver

David T. Schaefer

William D. Grubbs

Certificate of Mailing by /s/ M.

A-17

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

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

Cir.)

File Name: 00a0137p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

CHARLES KING, as Administrator of the

Estate of Patti Ann King

Plaintiff — Appellee, No. 98-5960

AMANDA SUE KING, by and through

her next friend, Charles King:

ASSOCIATED INSURANCE

COMPANIES

Intervening Plaintiffs - Appellees

A

FORD MOTOR COMPANY;

MAZDA MOTOR CORPORATION

Defendants — Appellants

Appeal from the United States District Court

for the Eastern District of Kentucky at London.

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

A-18

Argued: August 6, 1999

Decided and Filed: April 19, 2000

Before: BATCHELDER and COLE, Circuit Judges;

MARBLEY, District Judge. *

COUNSEL

ARGUED: E. Duncan Getchell, Jr., MCGUIRE, WOODS,

BATTLE & BOOTHE, Richmond, Virginia, for Appellants.

Samuel E. Davies, Barbourville, Kentucky, for Appellees.

ON BRIEF: E. Duncan Getchell, IJr., Rosewell Page, III,

MCGUIRE, WOODS, BATTLE & BOOTHE, Richmond,

Virginia, Bryan Todd Thompson, DINSMORE & SHOHL,

London, Kentucky, for Appellants. Samuel E. Davies,

Barbourville, Kentucky, for Appellees.

OPINION

R. GUY COLE, JR., Circuit Judge. Charles King,

administrator of the estate of Patti Ann King; Amanda King,

the Kings’ daughter, and the Associated Insurance

Companies (collectively “plaintiffs”), filed this suit against

the Ford Motor Company and Mazda Motor Corporation

(collectively “Ford”). Plaintiffs alleged that the passenger

restraint system in the 1992 Ford Escort in which Patti Ann

King was riding on August 21, 1994 was defective, causing

her death. Following a jury verdict in favor of the plaintiffs,

” The Honorable Algenon L. Marbley, United States District Judge for

the Southern District of Ohio, sitting by designation.

EE EEE ESS

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Ford raised several grounds for appeal. For the following

reasons, we AFFIRM the judgment of the district court.

I.

On August 21, 1994 Patti Ann King, Ginger

Brockman, and Erica Brockman were in Ginger Brockman’s

1992 Ford Escort, approaching McKee, Kentucky at about

thirty to thirty-five miles per hour. King was in the front

passenger’s seat, Ginger Brockman was driving, and Erica

Brockman was in the back seat. A pickup truck traveling in

the opposite direction, driven by sixteen-year-old Brian

Coyle, unwisely attempted to turn in front of Brockman’s

car, into the driveway of a Dairy Freeze restaurant. The front

of the Escort clipped the truck, causing a Delta V, or change

in velocity, in the car on the order of twenty-seven miles per

hour.

The Escort employed a “passive” or “automatic belt”

restraint system in its front seats. The system consisted of a

two-point motorized shoulder belt that automatically locked

in place when the occupant closed her door; a knee bolster

designed to restrain the lower torso; and a manual lap belt.

For a period of about six months, King had owned an Eagle

Talon with a similar system, and she was described as an

“avid seatbelt user.” At the time of the accident, however,

King was wearing only the automatic shoulder belt and not

the manual lap belt. She apparently had the lap belt on earlier

in the trip, but after her party stopped at the Gray Hawk store

to buy a newspaper, she failed to re-engage it.

' One of Ford’s experts described the knee bolster as “just a big pad right

down in the lower part of the instrument panel. And it was designed so

that if you got in a frontal accident, the torso belt would hold the upper

torso back but the lower torso would slide forward until the knees hit the

bolster and the bolster would, in effect, provide a mechanism for

absorbing energy in the lower torso... .”

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King suffered massive injuries in the accident — several

fractured ribs and a fractured collar bone; lacerations to both

lungs; and a tear to the left auricle of her heart. She

ultimately died of a lack of oxygen to her brain as a result of

her heart and lung injuries. King’s estate alleged that her

injuries were the result of defects in the Escort’s restraint

system and filed suit against Ford in the United States

District Court for the Eastern District of Kentucky on April

14, 1995. It asserted diversity jurisdiction and brought

state-law claims of negligence, strict liability, and breach of

implied warranties. Associated Insurance Companies

intervened to assert subrogation claims for medical expenses,

and Amanda Sue King, King’s daughter, intervened to assert

loss of consortium claims.

Before the case proceeded to trial, Ford filed a

motion for partial summary judgment, arguing that, to the

extent plaintiffs asserted that the Escort was defective

because it failed to contain an air bag, those claims were

preempted by the National Traffic and Motor Vehicle Safety

Act of 1966 (“Safety Act”), now codified’ at 49 U.S.C. §

30101 ef seq., and regulations promulgated thereunder, see

49 C.F.R. § 571.208 (1999) (“Standard 208”). The district

court granted this motion and plaintiffs’ remaining claims

were tried before a jury. At the close of plaintiffs’ proofs,

Ford filed a motion for judgment as a matter of law under

Fed. R. Civ. P. 50, asserting that plaintiffs’ claims were

preempted in their entirety. The district court denied this

motion. The case went to the jury on two distinct theories:

that the “automatic seat belt restraint system was defective

and unreasonably dangerous to the consumer” and that Ford

* Neither Ginger Brockman nor Brian Coyle were parties to this action.

Their insurance companies settled the Kings’ claims against them.

> The Safety Act was originally codified at 15 U.S.C. § 1381 ef seq.

Congress recodified the act in 1994, “‘without substantive change’ to the

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

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

eee ear eT

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failed to warn consumers of the potential dangers associated

with the restraint system. After first being sent back for

further deliberations after returning inconsistent answers to

interrogatories, the jury found Ford liable on both claims and

awarded damages in the amount of $1,848,109.84.4 Ford

renewed its motion for judgment as a matter of law and filed

a motion for a new trial, both to no avail. This timely appeal

followed.

I.

Ford first argues that plaintiffs’ claims are preempted

by federal law. This court generally reviews a district court’s

decision with regard to preemption de novo. See GTE

Mobilnet v. Johnson, 111 F.3d 469, 475 (6th Cir. 1997).

The Supremacy Clause of the United States

Constitution provides that federal law “shall be the supreme

Law of the Land . . . any Thing in the Constitution or Laws

of and State to the Contrary notwithstanding.” U.S. Const.

art. VI. Thus, as has been clear since the Supreme Court's

decision in M’Culloch v. Maryland, 17 U.S. 316 ( 1819), any

state law that conflicts with federal law is “without effect.”

Cipollone v. Ligget Group, Inc., 505 U.S. 504, 516 (1992)

(citing Maryland v. Louisiana, 451 U.S. 725, 746 (1981)).

In applying the Supremacy Clause, courts “start with

the assumption that the historic police powers of the States

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

the clear and manifest purpose of Congress.” Medtronic v.

Lohr, 518 U.S. 470, 485 (1996) (citing Rice v. Santa Fe

Elevator Corp., 331 US. 218, 230 (1947)). Therefore,

““[t]he purpose of Congress is the ultimate touchstone’ in

* The jury apportioned fault as follows: Ford, 65%; Brian Coyle, 20%:

Patti King, 10%; Ginger Brockman, 5%. The estate recovered

$823,172.58, Amanda Sue King recovered $975,000.00, and Associated

Insurance Cos. recovered $49,937.58.

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—

every pre-emption case.” /d. (citing Cipollone, 505 U.S. at

516). The Supreme Court has stated that Congress may make

its intent to preempt clear either expressly or implicitly. See

Freightliner Corp. v. Myrick, 514 U.S. 280, 287 (1995).

Implied preemption, in turn, takes two forms. “We have

found implied conflict pre-emption where it is impossible for

a private party to comply with both state and federal

requirements, or where state law stands as an obstacle to the

accomplishment and execution of the full purposes and

objectives of Congress.” /d. (internal citations and quotations

omitted). In summary, then, there are three types of

preemption -— express preemption, implied conflict

preemption, and implied field preemption.

Ford’s argument revolves around the Safety Act, and

Standard 208 promulgated thereunder. The Safety Act

authorizes the Secretary of Transportation to promulgate

Federal Motor Vehicle Safety Standards (“FMVSS”). See 49

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

political subdivision of a State may prescribe or continue in

effect a standard applicable to the same aspect of

performance of a motor vehicle or motor vehicle equipment

only if the standard is identical to the standard prescribed

under this chapter.” 49 U.S.C. § 30103(b). However, the act

also contains a savings clause, which provides that

“{c]ompliance with a motor vehicle safety standard

prescribed under this chapter does not exempt a person from

liability at common law.” 49 U.S.C. § 30103(e).

The Secretary’s Standard 208, promulgated pursuant

to the Safety Act, requires passenger cars manufactured after

September 1, 1989 but before September |, 1993, like the

Escort in this case, to comply with one of three front-seat-

occupant crash-protection options: (1) a complete passive

restraint system; (2) a passive system (automatic seat belts or

air bags) for frontal crash protection, manual belts for lateral

crashes and rollovers, and a warning system; or (3) manual

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front seat belts with a warning system. See 49 CFR. §

571.208, $4.1.4-S4.1.4.2.2. Ford used option 2 -- an

automatic shoulder belt and knee bolster to protect against

frontal collisions, a manual lap belt to protect against lateral

crashes and rollovers, and a warning system.

Ford’s position is that implied conflict preemption

applies in this case. It argues that “[b]ecause federal policy

[i.e. the Safety Act and Standard 208] affirmatively required

that these three options be available to manufacturers, a state

rule which found civil liability for using one of the

equipment options rather than another would be preempted.”

State tort law removing one option would obviously be “an

obstacle to the accomplishment and execution of the full

purposes and objectives of Congress,” namely the objective

that manufacturers have flexibility in choosing a restraint

system. Hines v. Davidowitz, 312 U.S. 52, 67 (1941). Ford

contends that plaintiffs’ suit would limit this flexibility, as

the company characterizes plaintiffs’ suit as one claiming

that two-point, automatic seatbelts with manual lap belts are

inherently defective. See Irving v. Mazda Motor Corp., 136

F.3d 764, 768-69 (11th Cir. 1998) (holding such a claim

preempted).

We agree with plaintiffs, however, that Ford has

misconstrued their case. As plaintiffs note:

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

the design choice made by defendants for protecting

against frontal collisions — an automatic shoulder belt

and knee bolster - was inherently defective but that

the specific design was defective due to failure to use

load limiters and/or change the location of the knee

bolster and/or change the location of the belt anchor.

Such a claim is not preempted by the Safety Act. The

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

vehicle.or motor vehicle equipment performance.” 49 U.S.C.

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§ 30102(a)(9). The Safety Act’s savings clause, which states

that compliance with an FMVSS does not shield a

manufacturer from liability at common law, contemplates

that manufacturers may be held liable for failure to exceed

these minimum standards when their decisions were

unreasonable. This is the essence of plaintiffs’ claims.

We find Perry v. Mercedes Benz of North America,

Inc., 957 F.2d 1257 (5th Cir. 1992), to be analogous to this

case. There, plaintiff alleged that the air bag in her car had

“an unreasonably dangerous ‘deceleration velocity

deployment threshold’” despite the fact that it met the

requirements of Standard 208. /d. at 1260. In other words,

plaintiff did not challenge Mercedes’s decision to place an

air bag in its cars, but rather argued that the air bag should

have been safer than required by federal law. After finding

that express preemption did not apply, the court held that

implied conflict preemption did not apply either. As an

initial matter, the court found it “obvious” that there was no

impossibility of complying with both federal and state law —

if state law required a higher level of protection than federal

law, a system that complied with state requirements would

satisfy federal regulations a fortiori. The court also found

that the differing levels of protection did not create an

obstacle to the fulfilment of federal objectives.

Once the manufacturer chooses an option that

includes an air bag system, Standard 208 S5-S6

merely set forth minimum performance requirements

_ for that system. To allow tort liability for the design

of that system would not remove or require any

particular choice, or otherwise frustrate “flexibility”

that the federal scheme provides. We recognize that

the manufacturer who chooses to meet only the bare

minimum performance requirements will be burdened

with the potential for tort liability, but this is the exact

burden that Congress preserved in the Savings

Clause, when it stated that “[c]ompliance with any

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Federal motor vehicle safety standard . . . does not

exempt any person from any liability under common

law.” Congress sought to meet its goal of minimizing

the number of deaths and injuries caused by auto

accidents by setting forth minimum standards and

leaving common law liability in place.

Id. at 1265-66. The court thus held that plaintiff's claim was

not preempted. See id; see also Pokorny v. Ford Motor Co.,

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

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

included in Standard 208 are pre-empted does not persuade

us.”); Collazo-Santiago v. Toyota Motor Corp., 957 F. Supp.

349, 353 (D.P.R.1997) (“[C]Jompliance with performance

criteria does not immunize manufacturers from common law

liability arising from any defects in the production or design

of their passive restraint systems.”); cf Sours v. General

Motors Corp. 717 F.2d 1511, 1516-17 (6th Cir. 1983)

("[T]he very federal safety statute upon which GM relies

makes it abundantly clear that compliance with the

regulations promulgated thereunder does not immunize a

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

§ 1397(c) (1976))). We hold that the plaintiffs’ claims in this

case similarly are not preempted.

Ii.

Ford next argués that plaintiffs’ evidence was

insufficient to support a verdict on either their product defect

theory or their failure-to-warn theory. In diversity cases, this

court applies a state-law standard of review to motions for

judgment as a matter of law which challenge the sufficiency

of the evidence necessary to support the jury’s verdict. See

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

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

of review is as follows:

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Under Kentucky law, a motion for a directed verdict —

the same thing as a motion for judgment as a matter

of law under Rule 50, Fed. R. Civ. P. — should be

granted only if “there is a complete absence of proof

on a material issue in the action, or if no disputed

issue of fact exists upon which reasonable minds

could differ.” Washington v. Goodman, 830 S.W.2d

398, 400 (Ky. App. 1992). In deciding such a

question, “every favorable inference which may

reasonably be drawn from the evidence should be

accorded the party against whom the motion is

made.” Baylis v. Lourdes Hosp., Inc., 805 S.W.2d

122, 125 (Ky. 1991).

Id. (quoting Adam v. J.B. Hunt Transp., Inc., 130 F.3d 219,

231 (6th Cir. 1997)).

A.

We turn first to the sufficiency of the evidence in

plaintiffs’ product defect claim. Following the Restatement

(Second) of Torts § 402A, Kentucky imposes strict liability

when the “‘design itself selected by the manufacturer

amounted to a defective condition which was unreasonably

dangerous.” Morales v. American Honda Motor Co., 71

F.3d 531, 536 (6th Cir. 1995) (citing Nichols v. Union

Underwear Co., 602 S.W.2d 429, 433 (Ky. 1980)). The

plaintiff has the burden, however, to establish causation

under the substantial factor test — that is, plaintiff must prove

that the defendant’s conduct was a substantial factor in

bringing about plaintiff's harm. /d. at 537 (citing Deutsch v.

Shein, 597 $.W.2d 141, 144 (Ky. 1980); Huffman v. SS.

Mary & Elizabeth Hosp., 475 S.W.2d 631, 633 (Ky. 1972)).

Plaintiff may use circumstantial evidence, and “in that

situation, ‘the evidence must be sufficient to tilt the balance

from possibility to probability.’” Jd. (citing cases).

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Ford contends that “the plaintiffs here presented no

testimony upon which a jury could find that King’s injuries

were caused by belt loading that exceeded her tolerances.

That was left to sheer speculation and surmise.” Ford focuses

on the testimony of two of plaintiffs’ experts, Syson and

Lafferty. Syson testified that King would have had a belt

load of 1,100 to 1,300 pounds during the accident and that

this was “right at her tolerance level,” as a 138 lb. woman.

Ford also claims that “Lafferty testified that a woman's

tolerance level is higher than 1,100 to 1,300 Ibs. Thus, the

company contends that neither testified that the belt load in

this case exceeded the decedent’s tolerance level. Ford

therefore contends that plaintiffs failed to prove causation in

this accident.

We reject this argument. As an initial matter, Ford

distorts Lafferty’s testimony. Ford claims that “Dr. Lafferty

testified that the human tolerance belt loads for a female

would range between 1,400-1,600 pounds.” In reality,

Lafferty testified, consistent with Syson, that this 1,400-

1,600 Ib. figure represented the average tolerance level for “a

50 percentile male.” Lafferty did not give a figure for the

average woman’s tolerance level — or for the decedent's

tolerance level, for that matter — but did testify that the

thresholds are lower for women than for men. Second, as

plaintiffs note, the evidence indicated that “there is great

variation from one person to the next” with regard to the

amount of force that they can tolerate. Therefore, one should

not interpret Syson’s statement that the belt loads were “right

at her tolerance level” as an indication that the belt loads did

not exceed the decedent’s tolerance level. Finally,

circumstantial evidence strongly supports the plaintiffs’ case.

After the accident, the decedent was found turning blue with

the seat belt cutting into her neck and chest. The belt had to

be cut to relieve the pressure. There is testimony that her

injuries were typical of those caused by restraint systems.

Additionally, plaintiffs’ experts eliminated other possible

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sources -- there was no evidence that the decedent impacted

the windshield or the dashboard, with the exception of her

hand and possibly her knee. There was certainly sufficient

evidence in this case whereby a jury could have concluded

that decedent’s injuries were caused by excessive belt loads.

Ford also contends that there was insufficient

evidence for the jury to find that the warnings in the 1992

Escort were defective and a substantial factor in causing the

decedent’s injuries. Specifically, Ford claims that the

evidence in the case demonstrates that the danger of not

wearing the lap belt was known to the decedent and that the

warnings located in the Escort as to that danger were

adequate.

Ford is correct that in Kentucky there is no duty to

warn of a known danger. See Hutt v. Gibson Fiber Glass

Prods., Inc., 914 F.2d 790, 793 (6th Cir. 1990); Demaree v.

Toyota Motor Corp., 37 F. Supp. 2d 959, 967 (W.D. Ky.

1999). The evidence here demonstrated that the decedent

was an avid seat belt user and that she had in fact been

wearing the lap belt in the Escort earlier in the day.

The jury, however, may have permissibly concluded

from the evidence in this case that the decedent was aware

that not wearing the lap belt would reduce the effectiveness

of the restraint system in preventing injuries caused by

hitting the dashboard or the like, but that she was not aware

that the failure to wear the belt could lead to deadly injuries

caused by the shoulder harness, even in a relatively minor

accident. Therefore, we cannot conclude, as a matter of law,

that the decedent was aware of the danger involved in this

case.

|

ate

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Nor can we conclude that the Escort’s warnings were

adequate as a matter of law. The warning located on the

Escort’s visor stated:

IMPORTANT FOR YOUR SAFETY

Following these instructions will greatly improve

your chances of avoiding severe injury in case of an

accident. ii

Be sure the shoulder belt buckle is engaged.

Always wear your lap belt when the car is moving. If

a lap belt cannot be worn, you should move the seat

forward so your knees are as close to the instrument

panel as possible.

Under Kentucky law, a warning “must be fair and adequate,

to the end that the user, by the exercise of reasonable care on

his own part, shall have a fair and adequate notice of the

possible consequences of use or even misuse.” Post v.

American Cleaning Equip. Corp., 437 S.W.2d 516, 520 (Ky.

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

warning in this case does indicate that following its advice

will “improve your chances of avoiding severe injury in case

of an accident” it does not indicate that misuse could lead to

severe injury caused by the shoulder belt itself It was

certainly within the jury’s prerogative to conclude that the

warning in this case did not adequately convey the dangers

involved. Post provides: |

As an example, it may be doubted that a sign

warning, “Keep off the Grass,” could be deemed

sufficient to apprise a reasonable person that the grass

was infested with deadly snakes. In some

circumstances a reasonable man might well risk the

penalty of not keeping off the grass although he

would hardly be so daring if he knew the real

consequences of his failing to observe the warning

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

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not be sufficient if the result of nonobservance was a

lethal explosion of the container.

Id. at 520. We affirm the district court on this issue.

IV.

Ford next argues that the district court erred by

failing to order a new trial when the jury returned with

inconsistent interrogatory answers. Fed. R. Civ. P. 49(b)

provides that when the jury so returns, the court should send

the jury back for further deliberations or order a new trial.

Ford moved for the latter, but the district court did the

former.

This issue requires little discussion. “In deciding at

what point further deliberations by a particular jury would be

fruitless or unduly coercive, the trial judge has wide

discretion.” United States v. Stevens, 177 F.3d 579, 583 (6th

Cir. 1999). Ford provides absolutely no case law or

reasoning to support its claim that resolving the

inconsistency in the jury’s initial answers to the

interrogatories required not merely a correction, but a change

in the jury’s conclusions. Cf United States v. Vazquez-

Rivera, 135 F.3d 172, 177 (1st Cir.1998) (“Painting black

lines on the sides of a horse and calling it a zebra does not

make it one.”).

¥,

Ford next argues that it was entitled to a new trial

because of defects in the jury verdict. This court reviews for

abuse of discretion a district court’s denial of a motion for a

new trial. See United States v. Rapanos, 115 F.3d 367, 372

(6th Cir. 1997).

i caninciaciiniiimeaiailailieaiaiiiiaailiiiiidia asl

A-31

Ford claims that the verdict in this case was not

unanimous.” After the jury returned following further

deliberations, each member of the jury was polled as to

whether the verdict represented his or her answer © Rather

than answering yes or no, Juror 12 answered “Here.” The

court apparently thought that all of the jurors had said yes,

and dismissed the jury. As the members were leaving,

however, the court reporter alerted the court to Juror 12’s

anomalous answer. The court Stopped the jury, and the

following exchange occurred:

THE COURT: All right. I need to know from you

whether the verdict that was rendered represents your

own verdict. Yes or no?

A JUROR: No.

THE COURT: I'm sorry?

A [DIFFERENT] JUROR: He can’t hear you.

THE COURT: I’m sorry I don't have the microphone

on. I need to know whether the verdict that was

returned represents your verdict?

A JUROR: No.

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

court gave a unanimity instruction. See Grossheim v. Freightliner Corp,

974 F.2d 745, 753 (6th Cir. 1992).

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

have the jury polled. Although jury polling Clearly does take place in

civil trials, see, e.g., Grossheim, 974 F.2d at 748, there is no express

provision for polling in the Federal Rules of Civil Procedure. See Audette

v. Isaksen Fishing Corp., 789 F.2d 956, 959 (Ist Cir. 1986). It is

apparently an unsettled question as to whether a party has a right to

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

when there are questions as to polling procedure, courts apparently look

to criminal cases for guidance. See, e.g., id. at 958-60.

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

that you do not agree with the verdict?

A JUROR: I agree with it, yeah, all of it.

THE COURT: All right. What do you mean when

you say that you say it’s not your verdict? I just want

to know if you agree with it or not agree with it.

A JUROR: I agree with it, what we put down.

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

his consent to the verdict. Generally, the proper procedure

when a poll indicates that unanimity with a verdict is

uncertain is to return the jury to the jury room for further

deliberations or to declare a mistrial. Cf. Fed. R. Crim. P.

31(d); Grossheim v. Freightliner Corp., 974 F.2d 745, 752-

53 (6th Cir. 1992) (affirming grant of new trial when polling

revealed that juror only assented to verdict so that she “could

go home”). There is a line of cases from other circuits that

holds that it is error for a district court to force a juror who

has expressed reluctance with a verdict during a jury poll to

cast his or her vote in open court without further deliberation

in the jury room. See, e.g., United States v. Edwards, 469

F.2d 1362, 1366 (Sth Cir. 1972) (finding reversible error

when judge demanded that juror state whether or not the

verdict was hers when she initially indicated that the verdict

was hers, but that she was “still in doubt”). However, a

judge's limited questioning of a juror regarding a poll answer

is not coercive or otherwise erroneous if used simply to clear

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

(finding a “limited exception to the bar of questioning from

the bench” when it-is apparent that the juror was confused

about a poll question or when the “juror’s dissent has

resulted from an inadvertent slip of the tongue”); Williams v.

United States, 419 F.2d 740, 746 (D.C. Cir. 1969) (“There is

a distinction in law and in fact between actions of the trial

judge to obtain clarity in place of confusion, and actions that =

produce a likelihood that a juror has been coerced.”). Here,

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the situation that precipitated the district court’s questions

was confusing. The jury was leaving the courtroom, the

judge’s microphone was not on at first, and there is some

indication that Juror 12 was having trouble hearing the

judge. Furthermore, the district court stated, in denying

Ford’s motion for a new trial based on this issue, that Juror

12 appeared “perplexed.” See United States v. Brooks, 420

F.2d 1350, 1353 (D.C. Cir. 1969) (noting that “the trial judge

is in a much better position than an appellate tribunal to

determine whether a recalcitrant juror’s eventual

acquiescence in a verdict was in fact freely given”). Under

the circumstances of this case, the district court’s limited

questioning of Juror 12 was proper and not coercive. ”*

VI.

Ford next contends it is entitled to a new trial because

the district court erred by failing to give two of its requested

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

give requested jury instructions under an abuse of discretion

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

Cir. 1997). We review jury instructions “as a whole in order

to determine whether [the instructions] adequately inform the

jury of relevant considerations and provide a basis in law for

aiding the jury to reach its decision.” Gafford v. General

Elec. Co., 997 F.2d 150, 166 (6th Cir. 1993) (quoting Beard

v. Norwegian Caribbean Lines, 900 F.2d 71, 72 (6th Cir.

1990)).

“Unless the trial judge’s interrogation serves to coerce a reluctant juror

into changing his vote, any formulation that [serves to ascertain that the

EE Pee, er eae rere,

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In a diversity action, state law determines the

substance of the jury instructions; however, questions

regarding the propriety of the instructions are governed hy

federal procedural law. See Persian Galleries, Inc. v.

Transcontinental Ins. Co., 38 F.3d 253, 257 (6th Cir. 1994).

In addition, trial courts have broad discretion in framing jury

instructions. See United States v. Moore, 129 F.3d 873, 876-

77 (6th Cir. 1977); see also Scamardo v. Scott County, 189

F.3d 707, 711 (8th Cir. 1999); Jennings v. BIC Corp., 181-

F.3d 1250, 1254 (11th Cir. 1999). “It is the better practice for

a federal court sitting in diversity to use state approved jury

instructions” in order to accurately instruct the jury on the

appropriate state substantive law. Laney v. Celotex Corp.,

901 F.2d 1319, 1321 (6th Cir. 1990) (citing Williams v.

Union Carbide Corp., 790 F.2d 552 (6th Cir. 1986)).

“Kentucky follows the ‘bare-bones’ principle in

providing instructions.” McGuire v. Commonwealth of

Kentucky, 885 S.W.2d 931, 936 (Ky. 1994); see also DSG

Corp. v. Anderson, 754 F.2d 678, 681-82 (6th Cir. 1985).

That is, the jury instructions “should not contain an

abundance of detail, but should provide only the bare bones

of the question for jury determination. This skeleton may

then be fleshed out by counsel on closing argument.” Bail v.

E.W. Scripps Co., 801 S.W.2d 684, 691 (Ky. 1990) (citing

Rogers v. Kasdan, 612 S.W.2d 133, 136 (Ky. 1981)). The

Kentucky Supreme Court has stated that:

In conclusion, it may be well to mention that

whenever counsel feels that jurors might draw

inferences that are not warranted by the specific

terminology of the instructions, his opportunity to

guard against it comes in the closing argument. If

| instructions are to be kept concise and to the point, as

| they should be, their supplementation, elaboration and

| detailed explanation fall within the realm of

advocacy. Contrary to the practice in some

jurisdictions, where the trial judge comments at

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length to the jury on the law of the case, the

traditional objective of our form of instructions is to

confine the judge’s function ta the hare essentials and.

let counsel see to it that the jury clearly understands

what the instructions mean and what they do not

mean.

Young v. J.B. Hunt Transp., Inc., 781 S.W.2d 503, 506-07

(Ky. 1989) (quoting Collins vy. Galbraith, Ky., 494 §.W.2d

527, 531 (Ky. 1973)).

In sum, the federal district court had discretion to

instruct the jury in any manner it deemed appropriate, as

long as it correctly stated Kentucky’s substantive law,

instructed on the issues relevant to the case at hand, and did

not mislead the jury. See Davis v. Mutual Life Ins. Co., 6

F.3d 367, 373 (6th Cir. 1993) (requiring reversal “only

where the instructions, considered as a whole, are confusing,

misleading, or prejudicial”). Therefore, the district court had

the option of seeking guidance from Kentucky practice in

formulating the jury instructions.®’ In fact, a federal court's

consideration of a state's jury instruction practice may insure

that the instructions correctly express state substantive law.

See Laney, 901 F.2d at 1321: cf. Rhea v. Massey-Ferguson,

Inc., 767 F.2d 266, 269 (6th Cir. 1985) (noting that in

Michigan the standard instructions must be given, and stating

that “[t]he district court had no duty to give the additional

requested instructions if the standard instructions, viewed as

a whole, fairly and accurately describe” state law). Finally,

* We recognize that two of our cases - one in unelaborated dicta and the

other unpublished - suggest that the federal district court is not required

to follow the Kentucky bare bones practice. See Robinson v. Ralph G.

Smith, Inc., 735 F.2d 186, 192 n.9 (6th Cir. 1984); Whitescarver v. Wal-

Mart Stores, Inc., No. 92-5197, 1992 WL 393172, at *3 (6th Cir. Dec.

29, 1992). Even if we were to consider either of these cases binding, a

district court is still free to look to a state's model jury instructions and

other authority to insure it properly instructs the jury under substantive

State law.

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even if a district court errs by failing to give a requested

instruction, we will not reverse when the error is harmless.

See United States v. Toney, 161 F.3d 404, 412-13 (6th Cir.

1998), cert. denied, 526 U.S. 1045 (1999).

A.

Ford contends that the district court erred by failing

to give an instruction stating that it had no duty to warn of

known dangers. Such an instruction would have been an

accurate general statement of Kentucky law. See Hutt, 914

F.2d at 793 (stating that under Kentucky law, “[t]here is no

duty on the part of a manufacturer to warn the user of a

product when the user is aware of the product’s danger’).

The trial court rejected Ford’s request to add a jury

instruction providing that “the defendants had no duty to

warn if Patti King knew of the lap belt and was aware of the

reasons for wearing it.” In denying the request, the district

court characterized the requested instruction as a “legal

standard,” and, as such, not a necessary jury instruction. This

characterization is consistent with the Kentucky Supreme

Court's indication that, under Kentucky tort law, the issue of

whether a defendant has a duty to a plaintiff is gcnerally a

question of law to be resolved by the trial court. See Mullins

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

1992) (“The question of duty presents an issue of law.”);

Sheehan v. United Service Auto. Assoc., 913 S.W.2d 4, 6

(Ky. Ct. App. 1996); Schrand v. Grant, No. 1997-CA-

091996-MR, 1999 WL 540877, at *2 (Ky. Ct. App. July 2,

1999).

In any event, Ford failed to present sufficient

evidence warranting such an instruction. Contrary to Ford’s

suggestion on appeal, the absence of a duty to warn was not

its theory of the case. Instead, Ford consistently argued that

its warnings were adequate, a distinct issue from a lack of a

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duty to warn. For example, Ford did not plead a lack of a

duty to warn in its response to King’s complaint. Likewise,

in opening arguments, Ford did not state that it would argue

that it had no duty to warn. Rather, Ford told the jury, after

Stating that its warnings were adequate, that it would show

that King wore her seat belt and knew she Ought to wear her

seat belt, supportive evidence for its argument that it

adequately warned King. Evidence in the case did in fact

indicate that King was an avid seat belt user, had previously

worn the lap belt in Brockman’s Escort, and had briefly

owned an Eagle Talon with a restraint system similar to that

in the 1992 Escort. Ford only raised the issue of a lack of a

duty to warn when it moved for a directed verdict on that

basis, to which the trial court responded, correctly, “I don't

know of any testimony as to her knowledge of the danger of

the product.”

The jury instructions initially submitted to the court

by Ford did not include one Stating that Ford did not have a

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

court had finalized the charge when Ford requested the

addition of an instruction with this language. In its closing,

Ford argued that the court would instruct the jury that “there

is a duty to warn a person of unknown danger” and that

“King knew of the safety purpose for the belt.” See Miller's

Bottled Gas, Inc. v. Borg-Warner Corp., 56 F.3d 726, 736

(6th Cir. 1995) (“{T]rial court may refuse to instruct the jury

On an issue when there has been insufficient evidence

presented to support a jury finding on that issue.”); Laugesen

v. Anaconda Co., 510 F.2d 307, 314 (6th Cir. 1975) (stating

that trial court had no obligation to instruct on a theory not

pleaded by a party and not supported by evidence); cf

Wagner v. Case Corp., 33 F.3d 1253, 1258 (10th Cir. 1994)

(approving the refusal to give a jury instruction, in a

Colorado diversity case, where party requesting instruction

offered “vague” evidence to support its argument).

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Although Ford introduced evidence and argued as to

King’s regular use of a seat belt, none of the evidence

adduced by Ford indicated that King was aware of the

dangei of potential injuries, or worsened injuries, from the

use of the shoulder belt alone. See Demaree v. Toyota Motor

Corp., 37 F. Supp. 2d 959, 967 (W.T. Ky. 1999) (applying

Kentucky law and finding no duty to warn because the

plaintiff explicitly testified that she knew of the danger of the

car’s air bag). Nor had Ford pointed to any objective

evidence that this danger was a matter of common

knowledge. See Leonard v. Uniroyal, 765 F.2d 560, 564 (6th

Cir. 1985).

“A judgment may be reversed only if the instructions,

viewed as a whole, were confusing, misleading, or

prejudicial.” Beard v. Norwegian Caribbean Lines, 900 F.2d

71, 72-73 (6th Cir. 1990). This was not the situation in the

present case. We further note that the district court gave an

instruction stating that in order for the plaintiffs to recover

on a failure-to-warn theory, Ford’s failure to provide an

adequate warning had to be a substantial factor in causing

the decedent’s injuries. Although this instruction goes to

causation rather than duty, it adequately conveys the intent

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

fully apprized of the need to wear the lap belt — that is, she

was aware of the danger from not doing so — Ford’s failure

to warn King obviously could not have played a substantial

factor in causing her death. See Leonard, 765 F.2d at 566

n.5; see also Schrand, 1999 WL 540877, at *2 (defining duty

as “the exercise of ordinary care to prevent foreseeable

injury from occurring to another person”). We therefore find

that the district court did not abuse its discretion by failing to

give the requested instruction.

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Ford next contends that, with regard to plaintiffs’

design defect claim, that the district court erred by failing to

give an instruction on alternate feasible designs — that is, an

instruction that the jury should determine whether there was

an alternate restraint-system design available at the time the

Escort was manufactured and whether a reasonably prudent

manufacturer would have used this alternative. The court’s

design-defect instruction was as follows:

In order to recover under her [sic] design defect

Claim, the plaintiffs must establish two essential

elements as follows:

First, that when the 1992 Ford Escorts left the

Possession of the defendants, the design of the

automatic seat belt restraint System was defective and

unreasonably dangerous to the consumer.

And second, that the unreasonably dangerous,

defective condition of the machine was a substantial

factor in causing the injury and death of Patti King.

As the term is used in this instruction, a design is

defective and unreasonably dangerous if it creates

such a risk of accidental injury to a prospective user

that an ordinarily prudent company engaged in the

manufacture of similar products, being fully aware of

the risk, would not have put it on the market.

In Ford Motor Co. vy. Fulkerson, 812 S.W.2d 119, 122-24

(Ky. 1991), the Kentucky Supreme Court specifically

approved for use in product liability actions the very type of

bare-bones design-defect instruction used by the district

court in this case. The Fulkerson court wrote:

Since the time Kentucky adopted the doctrine of

“strict liability” in products cases as Stated in the

Restatement, Second, Torts, § 402A, in the case of

Dealer’s Transport Company v. Battery Distributing

Company, Ky., 402 S.W.2d 441 (1966), the Kentucky

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practice has been to state the liability issue in the

terms of Restatement: Did the defendant manufacture,

sell or distribute the product “in a defective condition

unreasonably dangerous to the user. . . ?”

In Montgomery Elevator Co. v. McCullough, Ky., 676

S.W.2d 776, 780-81 (1984), we stated:

“Considerations such as feasibility of making a safer

product, patency of the danger, warnings and

instructions, subsequent maintenance and repair,

misuse, and the products’ inherently unsafe

characteristics, while they have a bearing on the

question as to whether the product was manufactured

‘in a defective condition unreasonably dangerous,’ are

all factors bearing on the principal question rather

than separate legal questions.”

A trial court is well advised to leave consideration of

these evidentiary factors to the arguments of counsel

rather than attempting to frame them up in the

instructions on the ultimate questions. The language

used may be confusing or misleading.

Id. The district court’s instruction in this case tracked the

language of the Restatement (Second) of Torts § 402A and

the instruction approved by Fulkerson. It was therefore

sufficient under Kentucky law, and we do not find that the

district court committed reversible error in giving that

instruction.”

2 The trial court was not required, as a matter of federal law, to instruct

on design defect. Although the appropriateness of the instructions is

reviewed under federal procedural standards, the substance of the

instructions to the jury should be based in state law. See Persian

Galleries, Inc., 38 F.3d at 257. The Kentucky courts have clearly stated

that to fully expound the law on design defects, the jury need not hear an

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

A-41

Vil.

Ford finally claims that it is entitled to a new trial

because the district court erred by excluding portions of

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

Geoff Germane. Maugh would have testified that the 1992

Escort was not defective because it did not use a load limiter

in its restraint system, and Germane would have testified that

belt loads in the 1992 Hyundai Excel, which employed a

load limiter, were actually higher than the belt loads in the

1992 Ford Escort. The testimony purportedly would have

demonstrated that load limiters were not feasible for the

1992 Escort. The district court held that the experts’ opinions

were not admissible under Fed. R. Evid. 26 because Ford did

not, within the allotted time window, disclose that the

experts would testify about these matters. This court reviews

such a ruling for abuse of discretion. See Pedigo v. UNUM

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

Fed. R. Evid. 26(a)(2)(B) provides, in part, that a

party's disclosure regarding an expert witness must “contain

a complete statement of all opinions to be expressed and the

basis and reasons therefor.” Fed. R. Evid. 37(c)(1), in turn,

provides that “[a] party that without substantial justification

fails to disclose information required by Rule 26(a) . . . shall

not, unless such failure is harmless, be permitted to use as

evidence at a trial, at a hearing, or on a motion any witness

or information not so disclosed.” Ford does not contend that,

prior to trial, it disclosed that its experts would testify about

load limiters in the Hyundai Excel; rather, it contends that it

had substantial justification for failing to disclose and that, in

any event, it would be fundamentally unfair to disallow the

proffered testimony. Ford claims that it was justified in

In fact, Kentucky’s courts believe that this instruction may confuse juries

as to the issues at stake under this doctrine. See id

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failing to make the required disclosures under Rule 26

because the testimony in question was merely offered to

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

regarding load limiters and belt loads in the 1992 Hyundai

Excel. Ford had disclosed that its experts would rebut

plaintiffs’ proffered testimony, and Ford claimed that it was

unaware prior to trial as to the nature of Syson’s testimony.

The district court squarely rejected this argument,

finding that plaintiffs had disclosed the nature of Syson’s

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

force limiter in the torso belt” was an option available to

Ford to improve its restraint system design. At his

deposition, Syson stated that he would provide exemplars of

load limiters during his testimony. A year prior to trial,

plaintiffs informed Ford that one of those exemplars would

be a load limiter used in the Hyundai Excel. Despite these

disclosures, the district court found, Ford never divulged

prior to trial that it would call any witnesses to testify about

load limiters in the Hyundai Excel. Ford does not address the

above facts in its brief before this court nor does it provide

any explanation as to why its failure to disclose was justified.

It has not demonstrated that the district court clearly erred.

Ford next argues that it would simply be unfair to

exclude its proffered testimony. We conclude that this is not

the case. Although it was attempting to present rebuttal

testimony, Ford’s unexcused failure to disclose that its

experts would testify regarding Hyundai Excel load limiters

did not allow plaintiffs the opportunity to prepare properly

for these witnesses. Furthermore, the district court allowed

one Ford witness, Michelle Vogler, to testify about the 1992

Hyundai Excel, stating in particular that the Escort and the

Excel had the same “chest loads.” The court thus did allow at

least a limited response to Syson’s “surprise” testimony.

Again, Ford has not demonstrated that the district court

clearly erred.

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“VIO.

For the foregoing reasons, the judgment of the district court

is AFFIRMED.

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Case No: 98-5960

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

ORDER

CHARLES KING, as Administrator

of the Estate of Patti Ann King

Plaintiff - Appellee

AMANDA SUE KING, by and through

her next friend, Charles King;

ASSOCIATED INSURANCE COMPANIES

Intervening Plaintiffs - Appellees

i

FORD MOTOR COMPANY;

MAZDA MOTOR CORPORATION

Defendants - Appellants

BEFORE: BATCHELDER, and COLE, Circuit

Judges; MARBLEY,* District Judge

Upon consideration of the petition for

rehearing filed by Appellants Ford Motor Company

and Mazda Motor Corporation,

It is ORDERED - that the petition for

rehearing be, and it hereby is, DENIED.

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ENTERED BY ORDER OF THE

COURT

/s/ Leonard Green

Leonard Green, Clerk

* The Honorable Algenon L. Marbley, United

States District Judge for the Southern District of

Ohio, sitting by designation.

[stamped Filed Jun 12 2000 Leonard Green, Clerk]

A-46

Case No: 98-5960

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

ORDER

CHARLES KING, as Administrator

of the Estate of Patti Ann King

Plaintiff - Appellee

AMANDA SUE KING, by and through

her next friend, Charles King;

ASSOCIATED INSURANCE COMPANIES

Intervening Plaintiffs - Appellees

Vv

FORD MOTOR COMPANY;

MAZDA MOTOR CORPORATION

Defendants - Appellants

BEFORE: BATCHELDER, and COLE, Circuit

Judges; MARBLEY,* District Judge

Upon consideration of the motion filed by

appellants to stay the mandate pending the filing of a

Petition for Writ of Certiorari,

It is ORDERED that the motion be, and it

hereby is, GRANTED. The mandate is stayed for

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ninety days from the date of this court’s denial of the

petition for rehearing, unless the Court is advised that

the Petition for Writ of Certiorari has been filed.

ENTERED BY ORDER OF THE

COURT

/s/ LEON EN

Leonard Green, Clerk

* The Honorable Algenon L. Marbley, United

States District Judge for the Southern District of

Ohio, sitting by designation.

[stamped Filed Jul 20 2000 Leonard Green, Clerk]

A-48

49 USCS § 30111 (2000)

§ 30111. Standards

(a) General requirements. The Secretary of

Transportation shall prescribe motor vehicle safety

standards. Each standard shall be practicable, meet

the need for motor vehicle safety, and be stated in

objective terms.

A-49

49CFR § 571.208 (2000)

§ 571.208 Standard No. 208, Occupant crash

protection.

S1. Scope. This standard specifies

performance requirements for the protection of

vehicle occupants in crashes.

S2. Purpose. The purpose of this standard is

to reduce the number of deaths of vehicle occupants,

and the severity of injuries, by specifying vehicle

crashworthiness requirements in terms of forces and

accelerations measured on anthropomorphic

dummies in test crashes, and by specifying

equipment requirements for active and passive

restraint systems.

S4.1.2.1 First option -- frontal/angular

automatic protection system. The vehicle shall:

(a) At each front outboard designated seating

position meet the frontal crash protection

requirements of SS.1 by means that require no action

by vehicle occupants;

(b) At the front center designated seating

position and at each rear designated seating position

have a Type 1 or Type 2 seat belt assembly that

conforms to Standard No. 209 and to $7.1 and 37.2;

and

(c) Either. (1) Meet the lateral crash

protection requirements of $5.2 and the rollover

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crash protection requirements of $5.3 by means that

require no action by vehicle occupants; or

(2) At each front outboard designated seating

position have a Type 1 or Type 2 seat belt assembly

that conforms to Standard No. 209 and S7.1 through

S7.3, and that meets the requirements of S5.1 with

front test dummies as required by S5.1, restrained by

the Type 1 or Type 2 seat belt assembly (or the pelvic

portion of any Type 2 seat belt assembly which has a

detachable upper torso belt) in addition to the means

that require no action by the vehicle occupant.

§4.1.2.2 Second option -- head-on automatic

protection system. The vehicle shall --

(a) At each designated seating position have a

Type 1 seat belt assembly or Type 2 seat belt

assembly with a detachable upper torso portion that

conforms to §7.1 and $7.2 of this standard.

(b) At each front outboard designated seating

position, meet the frontal crash protection

requirements of $5.1, in a perpendicular impact, by

means that require no action by vehicle occupants;

(c) At each front outboard designated seating

position, meet the frontal crash protection

requirements of $5.1, in a perpendicular impact, with

a test device restrained by a Type 1 seat belt

assembly; and

(d) At each front outboard designated seating

position, have a seat belt warning system that

conforms to $7.3.

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$4.1.2.3. Third option -- lap and shoulder belt

protection system with belt warning.

S4.1.2.3.1 Except for convertibles and open-

body vehicles, the vehicle shall

(a) At each front outboard designated seating

position have a seat belt assembly that conforms to

S7.1 and S7.2 of this standard, and a seat belt

warning system that conforms to S7.3._ The belt

assembly shall be either a Type 2 seat belt assembly

with a nondetachable shoulder belt that conforms to

Standard No. 209 (§ 571.209), or a Type 1 seat belt

assembly such that with a test device restrained by

the assembly the vehicle meets the frontal crash

protection requirements of $5.1 in a perpendicular

impact.

(b) At any center front designated seating

position, have a Type 1 or Type 2 seat belt assembly

that conforms to Standard No. 209 (§ 571.209) and to

S7.1 and S7.2 of this standard, and a seat belt

warning system that cenforms to $7.3; and

(c) At each other designated seating position,

have a Type 1 or Type 2 seat belt assembly that

conforms to Standard No. 209 (§ 571.209) and S7.1

and S7.2 of this standard.

S4.1.4.1 Except as provided in $4.1.4.2, each

passenger car manufactured on or after September 1,

1989 shall comply with the requirements of S$4.1.2.1.

Any passenger car manufactured on or after

September 1, 1989 and before September 1, 1993

whose driver’s designated seating position complies

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with the requirements of S$4.1.2.1(a) by means not

including any type of seat belt and whose right front

designated seating position is equipped with a manual

Type 2 seat belt so that the seating position complies

with the occupant crash protection requirements of

S5.1, with the Type 2 seat belt assembly adjusted in

accordance with $7.4.2, shall be counted as a vehicle

complying with $4.1.2.1. A vehicle shall not be

deemed to be in noncompliance with this standard if

its manufacturer establishes that it did not know in

the exercise of due care that such vehicle is not in

conformity with this standard.