S.L.M. Ex Rel. Musick v. Dorel Juvenile Group, Inc. ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-1500
S. L. M., an infant, by and through her mother and next
friend, Amy L. Musick,
Plaintiff – Appellant,
v.
DOREL JUVENILE GROUP, INC.,
Defendant – Appellee,
and
COSCO MANAGEMENT, INC.,
Defendant.
Appeal from the United States District Court for the Western
District of Virginia, at Abingdon. James P. Jones, District
Judge. (1:11-cv-00005-JPJ-PMS)
Argued: January 29, 2013 Decided: March 25, 2013
Before KING, WYNN, and DIAZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: James J. O'Keeffe, IV, GENTRY, LOCKE, RAKES & MOORE,
Roanoke, Virginia, for Appellant. Jonathan Judge, SCHIFF
HARDIN, LLP, Chicago, Illinois, for Appellee. ON BRIEF: Walter
C. Greenough, SCHIFF HARDIN, LLP, Chicago, Illinois; Lynne
Blain, Dannel C. Duddy, HARMAN, CLAYTOR, CORRIGAN & WELLMAN, PC,
Glen Allen, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
In this products liability action, Amy L. Musick, as mother
and next friend of her infant daughter, S.L.M., appeals the
judgment of the district court in favor of Dorel Juvenile Group,
Inc., the defendant below. Dorel, which manufactures and
markets child safety seats, was sued by Musick in the Western
District of Virginia for grievous head injuries S.L.M. sustained
when a young, inattentive driver struck the Musicks’ minivan in
the rear. At the close of the evidence and the parties’
arguments, the court instructed the jurors on Virginia law, then
produced a special verdict form, directing the jury to consider
sequentially: (1) whether Dorel’s High Back Booster seat (the
“booster seat”), in which S.L.M was secured at the time of the
accident, was defective; (2) if so, whether the defect
proximately caused the girl’s injuries; and (3) in the event
that defect and causation had been adequately proved, the proper
amount and attribution of damages.
The jury returned its verdict in favor of Dorel, finding at
the threshold that the booster seat was not defective. Musick
subsequently moved for a new trial, alleging that certain
evidence was improperly admitted, that the jury was led awry by
the district court’s instructions, and that defense misconduct
unfairly tainted the proceedings. The court denied Musick’s
motion and entered judgment for Dorel. On appeal, Musick
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pursues more or less the same assignments of error, contending
primarily that the jury was unduly influenced by the court’s
decision to allow Dorel to admit into evidence that it designed
and constructed the booster seat in compliance with Federal
Motor Vehicle Safety Standard 213 (“FMVSS 213”), 49 C.F.R.
§ 571.213, which establishes child safety seat standards based
on testing conducted for frontal impacts, but not on testing for
rear-impact collisions like the one that injured S.L.M. In
accordance with our explanation below, we reject Musick’s
challenges to the jury’s verdict and affirm.
I.
As prescribed by the federal rules, “[e]vidence is relevant
if . . . it has any tendency to make a fact more or less
probable than it would be without the evidence[,] and . . . the
fact is of consequence in determining the action.” Fed. R.
Evid. 401. Relevant evidence may nonetheless be excluded “if
its probative value is substantially outweighed by” any of
several dangers, including unfair prejudice and confusion of the
issues. See Fed. R. Evid. 403.
The district court here was imbued with “broad discretion
in ruling on questions of relevancy and in balancing the
probative value of relevant evidence against any undue
prejudice.” United States v. Zandi, 769 F.2d 229, 237 (4th Cir.
4
1985) (citing Hamling v. United States, 418 U.S. 87, 124-25
(1974)). We review the court’s evidentiary rulings merely to
ensure that it did not abuse its considerable discretion. See
Belk, Inc. v. Meyer Corp., U.S., 679 F.3d 146, 161 (4th Cir.
2012).
II.
We begin with black-letter law, namely, that “a product’s
compliance with an applicable product safety statute or
administrative regulation is properly considered in determining
whether the product is defective with respect to the risks
sought to be reduced by the statute or regulation.” Restatement
(Third) of Torts: Prod. Liab. § 4(b) (1998); see Talley v.
Danek Med., Inc., 7 F. Supp. 2d 725, 731 (E.D. Va. 1998)
(observing that, in evaluating design defect, “‘a court should
consider whether the product fails to satisfy . . . applicable
government standards’” (quoting Redman v. John D. Brush & Co.,
111 F.3d 1174, 1177 (4th Cir. 1997) (internal citation
omitted))). Were we to accept Musick’s position that FMVSS 213
is not an “applicable” administrative promulgation (and thus
irrelevant to Dorel’s defense), we would also be constrained to
accept that the “risks sought to be reduced” by the regulation
necessarily excluded the specific risk of injury through a rear-
end collision. In light of such exclusion, it would logically
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follow that FMVSS 213 could not have been intended to reduce the
risks presented by motor vehicle collisions as a whole.
We cannot so construe the regulation, which provides on its
face, plainly and simply, that its purpose is “to reduce the
number of children killed or injured in motor vehicles,” without
regard to how those children may come to be endangered. 49
C.F.R. § 571.213 S2 (2012). At trial, the regulation’s supposed
lack of attention to rear-impact testing was readily explained
by Dorel’s expert, William Van Arsdell. Dr. Van Arsdell
testified that the government had once considered implementing
standards based on rear-impact testing, but deemed action
unnecessary because the “child seats on the market would have
passed those . . . standards.” J.A. 1467. 1 Under these
circumstances, we could hardly attribute to FMVSS 213 the
abbreviated reach that Musick urges.
Moreover, though Musick’s claim proceeded on a theory of
strict liability and not negligence, the care with which Dorel
designed the booster seat was yet placed in issue. See Turner
v. Manning, Maxwell & Moore, Inc., 217 S.E.2d 863, 868 (Va.
1975) (instructing that a “manufacturer is under a duty to
exercise ordinary care to design a product that is reasonably
1
Citations herein to “J.A. ___” refer to the contents of
the Joint Appendix filed by the parties to this appeal.
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safe for the purpose for which it is intended (citation
omitted)). Indeed, the jury was instructed in absolute
conformity with Turner. See J.A. 1657. Evidence of Dorel’s
compliance with FMVSS 213 was therefore relevant and necessary
to demonstrate the company’s care in bringing the booster seat
to market.
Although the evidence in question was helpful to Dorel, and
thus, by corollary, prejudicial to the plaintiff’s case, that
prejudice did not rise to the level of unfairness contemplated
by Rule 403. Indeed, it arguably would have been unfair to
Dorel for the district court to have excluded the challenged
evidence on relevancy grounds, particularly given the nature of
Musick’s proof of defect. That proof consisted of expert and
anecdotal testimony intended to show that the booster seat was
defective because Dorel could have designed it with larger side
wings and energy absorbing padding, at a minimum of additional
cost. See, e.g., J.A. 996-97.
There was no evidence, however, to the effect that the
hypothetical design changes would have made the seat safer only
in the event of a rear-impact collision. Rather, the testimony
established that the proffered changes would have made the seat
more safe generally. See, e.g., J.A. 699 (testimony of
plaintiff’s expert on biomechanics, Dr. Stefan Duma, that
padding “[a]bsolutely would have effectively eliminated any risk
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of skull fracture,” without qualification as to type of
collision); id. at 996 (testimony of mechanical engineer Gary
Whitman, appearing on behalf of plaintiff, that “large side
wings and energy absorbing padding was necessary to provide good
protection to children,” without minimizing protective benefits
afforded in front- or side-impact collisions). 2
Because Musick’s evidence attacked only the general design
of the booster seat, it would have been inequitable to have
excluded Dorel’s competing evidence in kind. We recognize that
our conclusion today may be in some tension with those reached
by two state courts that have considered the similar issue. See
Malcolm v. Evenflo Co., Inc., 217 P.3d 514, 522-23 (Mont. 2009);
Uxa ex rel. Uxa v. Marconi, 128 S.W.3d 121, 130-31 (Mo. Ct. App.
2003). We respectfully disagree with the outcomes reached in
these cases, and emphasize that the court’s decision in Malcolm
was based in part on Montana’s rejection of that portion of the
Restatement on which we have relied as accurately stating the
law of Virginia. The summary ruling in Marconi, under
2
The skull fracture alluded to by Dr. Duma was devastating,
permanently disabling S.L.M. such that her lifetime cost of care
is, according to the trial evidence, likely to approach $10
million. See J.A. 874-75. The circumstances of this case are
truly tragic, as the district court acknowledged. See id. at
1873. We do not envy the task undertaken by the jury here,
which must have been extraordinarily difficult; that is all the
more reason, however, for us to respect the verdict it
ultimately reached.
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circumstances less distinguishable from the case at bar, suffers
from a brevity of analysis and does not persuade us. 3
Based on the above considerations, we are unwilling to
conclude that the district court abused its discretion in
admitting evidence of Dorel’s compliance with FMVSS 213. We
have also examined the jury instructions relating to that
regulation, and we can discern no abuse of discretion; each
instruction accurately states Virginia law and was warranted by
the trial evidence. 4
III.
With respect to the remaining assignments of error, we are
content to affirm the judgment below on the grounds set forth by
3
Musick also maintains that the district court abused its
discretion by admitting into evidence what was represented to be
a “preamble” to the regulation. Although there is now some
substantial question as to whether the exhibit is what it was
represented to be, there was no objection made at trial, and its
admission was not plain error.
4
We single out for comment the district court’s instruction
relating to FMVSS 213. The court instructed the jury that, as
to the question of defect, it “may consider, among other things,
any pertinent safety standards issued by the government. Such
evidence may assist you in determining whether or not the car
seat in question was defective, but does not require that you
find one way or the other as to that issue.” J.A. 1660
(emphasis added). We are satisfied that the court’s instruction
adequately informed the jury that, contrary to Musick’s
contention, Dorel’s compliance with the regulation was not
dispositive of the case as a whole.
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the district court in its thorough and well-reasoned memorandum
Opinion and Order denying Musick’s motion for a new trial. See
Musick v. Dorel Juvenile Group, Inc., 847 F. Supp. 2d 887 (W.D.
Va. 2012).
AFFIRMED
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