Incarnacion Speaks v. Mazda Motor Corp. , 701 F. App'x 663 ( 2017 )

FILED
NOT FOR PUBLICATION
JUL 26 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
INCARNACION L. SPEAKS, No. 15-35888
Plaintiff-Appellant, D.C. No. 9:14-cv-00025-DLC
v.
MEMORANDUM*
MAZDA MOTOR CORPORATION and
MAZDA MOTOR OF AMERICA, INC.,
DBA Mazda North America Operations,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Montana
Dana L. Christensen, Chief Judge, Presiding
Argued and Submitted June 13, 2017
Seattle, Washington
Before: D.W. NELSON, M. SMITH, and CHRISTEN, Circuit Judges.
Incarnacion Speaks (“Speaks”) appeals the district court’s judgment,
following a jury trial, in favor of Mazda Motor Corporation (“Mazda”) in a strict
products liability action in which Speaks alleged that her car’s passive restraint
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
system was defectively designed. On appeal, Speaks argues that the district court
erred by: (1) refusing to instruct the jury that the foreseeable routing of the
shoulder belt under the arm was not misuse or negligence; (2) precluding
foreseeability-related evidence and refusing to provide an instruction explaining
foreseeable misuse; and (3) giving a “mere fact of the accident” instruction. We
have jurisdiction under 28 U.S.C. § 1291, and we AFFIRM in part and
REVERSE and REMAND in part.
1. The district court abused its discretion by instructing the jury that it could
only consider evidence of shoulder belt misuse to determine the cause of Speaks’
injuries without also explaining that foreseeable misuse is not a defense to a strict
products liability claim under Montana law. In its summary judgment order, the
court dismissed Mazda’s misuse affirmative defense, explaining that “Speaks’
alleged ‘misuse’ of the restraint system was foreseeable to Mazda” and that
“Mazda actually foresaw it.” However, the court subsequently declined to instruct
the jury in accordance with this pretrial ruling, fearing the “risk of saying too
much, drawing too much focus to the concepts of negligence or misuse.” That
decision was in error. Although the misuse defense was dismissed, the district
court permitted Mazda to introduce considerable evidence at trial – including
expert testimony – that Speaks must have misused the restraint system by routing
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the seatbelt under her arm.1 This in turn allowed Mazda to imply that misuse,
rather than the design of the restraint system, caused Speaks’ injuries. Thus, even
though the court repeatedly instructed the jury that it could consider misuse
evidence only for the limited purpose of assessing whether Speaks’ injuries were
caused by a design defect, its failure to also instruct the jury that foreseeable
misuse is not a defense to a strict products liability claim under Montana law left
the jury awash with misuse evidence yet without instructions that “fairly and
adequately covered the issues presented.” Duran v. City of Maywood, 221 F.3d
1127, 1130 (9th Cir. 2000).2
Without a clarifying and legally correct instruction akin to the one that
Speaks requested, the jury would not have known that foreseeable misuse is not a
defense under Montana law and could have equated under-the-arm seatbelt routing
with unreasonable misuse. See Kenser v. Premium Nail Concepts, Inc., 338 P.3d
37, 43 (Mont. 2014) (“[I]f it is reasonably foreseeable to a defendant that its
product can be or is being used in a specific manner, and a consumer is injured by
1
To be clear, because Mazda was entitled to introduce evidence to try to
defeat the causation element of Speaks’ case, we do not hold that the district court
improperly admitted Mazda’s misuse evidence.
2
We note that the instruction in which the district court explained that the
“negligence of either party is not relevant to” a strict products liability case
exacerbated the need for an instruction of the sort that Speaks requested because
the court never explained negligence or addressed foreseeable misuse.
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using the product in that manner, the defendant cannot argue that the plaintiff had
misused its product.”); cf. id. (“The court’s instruction that Kenser’s use of the
product was foreseeable . . . and did not constitute misuse was correct but
inadequate and allowed the possibility that the jury could or would equate ‘skin
contact’ with ‘misuse.’”). Consequently, on the record before us, and in the
absence of any arguments from Mazda concerning prejudice, we hold that the
district court prejudicially erred. See Gantt v. City of Los Angeles, 717 F.3d 702,
707 (9th Cir. 2013) (“An error in instructing the jury in a civil case requires
reversal unless the error is more probably than not harmless. Because we presume
prejudice where civil trial error is concerned, the burden shifts to the defendant to
demonstrate that the jury would have reached the same verdict had it been properly
instructed.”).
2. The district court abused its discretion by precluding Speaks from
introducing foreseeability-related evidence and refusing to provide an instruction
akin to Speaks’ proposed jury instruction number 46, which stated that:
Sellers must expect that their products will not always be used in
precisely the manner for which they were designed or constructed.
Under Montana law, if a seller expects or reasonably foresees that its
product is or will be subject to use in a certain fashion the product’s
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design must design out or guard against defects associated with such
use.
First, the district court’s determination that foreseeability evidence may only be
presented in negligence cases or in strict liability cases involving the misuse
affirmative defense is not supported by Montana law. See Kenser, 338 P.3d at
40–43 (requiring jury instructions and evidence on foreseeability issues in strict
products liability case where no misuse affirmative defense was available);
McJunkin v. Kaufman & Broad Home Systems, Inc., 748 P.2d 910, 918 (Mont.
1987) (concluding that “[t]he test of a defective product is whether the product was
unreasonably unsuitable for its intended or foreseeable purpose” (emphasis
added)); see also Wise v. Ford Motor Co., 943 P.2d 1310, 1312 (Mont. 1997)
(describing the McJunkin test); Montana Pattern Instruction 7.02 (1997)
(characterizing the second element of a design defect claim as follows: “at the time
of the injury [damage] the product was being used by plaintiff in a manner
reasonably foreseeable by the defendant” (emphasis added)).
Although it permitted Mazda to introduce considerable evidence that Speaks
routed the shoulder belt under her arm – thereby allowing misuse to remain the
centerpiece of Mazda’s defense – the district court precluded Speaks from
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rebutting Mazda’s evidence with evidence or “arguments about foreseeability,”3
despite having previously concluded that “Speaks’ alleged ‘misuse’ of the restraint
system was foreseeable to Mazda” and that “Mazda actually foresaw it.” On the
record before us, and in the absence of any arguments from Mazda concerning
prejudice, we cannot hold that the district court’s error was harmless. See Duran,
221 F.3d at 1130 (9th Cir. 2000) (to reverse “on the basis of an erroneous
evidentiary ruling, we must find . . . that the error was prejudicial” (citation and
internal quotation marks omitted)).
Second, Speaks’ proposed Jury Instruction 46 was supported by Montana
law. See Lutz v. Nat’l Crane Corp., 884 P.2d 455, 459–60 (Mont. 1994)
(explaining that the Montana strict product liability statute “clearly contemplates
that manufacturers must expect, or, stated another way, must reasonably foresee,
that their products will not always be used in precisely the manner for which they
were designed or constructed”); id. at 460 (“[I]f the manufacturer reasonably
foresees that its product can be misused in a certain fashion – i.e., that the
3
Given that the district court ruled that “foreseeability is out of the case,”
and explicitly ordered Speaks not to make any “arguments about foreseeability,”
we reject Mazda’s arguments concerning Speaks’ failure to offer foreseeability-
related evidence. Speaks reasonably understood that the district court’s
overarching rulings on foreseeability precluded her from offering such evidence,
including through cross examination.
6
offending misuse is ‘reasonable’ – then the manufacturer does not have the benefit
of a defense which exonerates or mitigates its breach of duty and its wrongful
conduct in failing to design out or guard against the defect.”); cf. Sternhagen v.
Dow Co., 935 P.2d 1139, 1142 (Mont. 1997) (explaining that Montana adopted
strict liability doctrine in part because “[t]he manufacturer can anticipate some
hazards and guard against their recurrence, which the consumer cannot do”).
Without an instruction explaining foreseeable misuse, the jury was left without
instructions that “fairly and adequately covered the issues presented.” Duran, 221
F.3d at 1130. On this record, and in the absence of any arguments from Mazda
concerning prejudice, we cannot conclude that the district court’s error was
harmless. See Gantt, 717 F.3d at 707.
3. The district court did not abuse its discretion by instructing the jury that
“[s]trict liability is not absolute liability and a plaintiff will not sustain her burden
of proof by merely establishing the fact that the accident discussed during the trial
occurred.” See Brown v. N. Am. Mfg. Co., 576 P.2d 711, 717 (Mont. 1978)
(“Ordinarily, a plaintiff will not sustain his burden of proof by merely establishing
the fact of the occurrence of an accident. Imposition upon a plaintiff of the burden
of showing a traceable defect, causation and damage or injury assures an
appropriate limitation to a manufacturer’s liability.” (internal citation omitted)); see
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also Wood v. Old Trapper Taxi, 952 P.2d 1375, 1384 (Mont. 1997); Hagen v. Dow
Chemical Co., 863 P.2d 413, 417 (Mont. 1993). Speaks’ argument that Justice
Treiweiler’s special concurrence in Cameron v. Mercer requires courts to reject a
“mere fact of the accident” instruction in strict products liability cases is
unavailing. 960 P.2d 302, 307 (Mont. 1998) (Trieweiler, J., concurring)
(concluding that where “the defendant’s conduct violated at least three separate
motor vehicle statutes, the mere happening of an accident instruction was
incompatible with the usual presumption that the defendant’s conduct constituted
negligence as a matter of law.” (emphasis added)); see also id. (“[I]n an ordinary
negligence action . . . such an instruction should be given a decent burial.”
(emphasis added) (citation and internal quotation marks omitted)).
The parties shall bear their own costs on appeal. See Fed. R. App. P.
39(a)(4).
AFFIRMED in part and REVERSED and REMANDED in part.
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