Nicole Thompson v. Trw Automotive U.S. LLC , 694 F. App'x 566 ( 2017 )


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  •                            NOT FOR PUBLICATION                            FILED
    UNITED STATES COURT OF APPEALS                         JUL 25 2017
    MOLLY C. DWYER, CLERK
    U.S. COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    NICOLE THOMPSON,                                No.    15-17074
    Plaintiff-Appellee,             D.C. No.
    2:09-cv-01375-JAD-PAL
    v.
    TRW AUTOMOTIVE U.S. LLC, a                      MEMORANDUM*
    Delaware corporation,
    Defendant-Appellant.
    Appeal from the United States District Court
    for the District of Nevada
    Jennifer A. Dorsey, District Judge, Presiding
    Argued and Submitted July 14, 2017
    San Francisco, California
    Before: GRABER and FRIEDLAND, Circuit Judges, and FOGEL,** District
    Judge.
    TRW Automotive U.S. LLC (“TRW”) appeals from the denial of its motions
    for judgment as a matter of law and for a new trial after a jury found in favor of
    Nicole Thompson in her product liability action against TRW. TRW argues that
    *
    This disposition is not appropriate for publication and is not precedent
    except as provided by Ninth Circuit Rule 36-3.
    **
    The Honorable Jeremy D. Fogel, United States District Judge for the
    Northern District of California, sitting by designation.
    (1) the district court should have used a risk-utility instruction; (2) the court should
    have used a but-for causation instruction; and (3) substantial evidence does not
    support a conclusion that the airbag’s failure to deploy caused Thompson’s
    injuries.
    1. The district court did not err by failing to use a risk-utility instruction
    because Nevada has not adopted the risk-utility test in design defect product
    liability cases. Instead, Nevada courts use the consumer-expectations-based test
    articulated in Ginnis v. Mapes Hotel Corp., 
    470 P.2d 135
     (Nev. 1970). The district
    court used this test to instruct the jury, and its instruction mirrored Nevada’s
    pattern jury instruction.
    2. Thompson and TRW presented mutually exclusive theories of causation
    for Thompson’s injuries: Either Thompson’s head hitting the visor upon contact
    with the pole caused her neck injury—and the airbag could have prevented this
    injury had it deployed—or her chin hitting the steering wheel upon contact with the
    curb caused the injury, and any later deployment of the airbag would not have
    prevented the injury. Because the theories were mutually exclusive, the district
    court should have given a but-for causation instruction. See Wyeth v. Rowatt, 
    244 P.3d 765
    , 778 (Nev. 2010). Nevertheless, because the parties presented the
    theories to the jury as mutually exclusive and evidence supports Thompson’s
    theory, it is more probable than not that the jury would have returned a verdict for
    2
    Thompson even if the court had used the but-for causation instruction. The error
    was thus harmless.
    3. Substantial evidence supports the conclusion that a design defect in the
    airbag electronic control module caused Thompson’s injuries. At trial, witnesses
    explained how airbags operate, what they are intended to do, and why they would
    be expected to deploy in the collision at issue. Witnesses also described how the
    collision with the pole caused Thompson’s injuries. Given the testimony regarding
    the purpose and operation of airbags and the evidence that the pole collision caused
    Thompson’s injuries, substantial evidence demonstrates that, had the airbag
    deployed during the collision, Thompson would not have suffered worse injuries
    and in fact would have sustained less severe injuries. Moreover, substantial
    evidence shows that Thompson’s failure to wear her seatbelt or a defect in the
    seatbelt was not a superseding intervening cause of her injuries.
    AFFIRMED.
    3
    

Document Info

Docket Number: 15-17074

Citation Numbers: 694 F. App'x 566

Judges: Graber, Friedland, Fogel

Filed Date: 7/25/2017

Precedential Status: Non-Precedential

Modified Date: 11/6/2024