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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2000
- **Citation:** 531 U.S. 960

## Text

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)?

il

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

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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

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CONSTITUTIONAL AND STATUTORY

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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
(te eg >. Senenere nue i, ii, 1-3
Thomas v. American Home Products, Inc., 519
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CONSTITUTIONAL PROVISIONS
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FEDERAL STATUTES AND REGULATIONS
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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

|

4
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.

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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

eT mE

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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

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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,

A-34

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

A-40

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

A-42

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.

A-43

“VIO.

For the foregoing reasons, the judgment of the district court
is AFFIRMED.

A-44

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.

A-45

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

A-47

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

A-50

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

A-52

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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386019_1590%3A1. Public record. Not legal advice.