Virginia Nester v. Textron, Incorporated
Opinion
*154 Gini Nester suffered permanent injuries when an unmanned utility vehicle ran her over. Gini and her husband sued Textron, the vehicle's manufacturer, alleging that the vehicle was defectively designed. A jury agreed and awarded the Nesters a sizeable verdict. Textron then appealed, complaining of the substance and form of the jury charge, the admissibility of two pieces of evidence, and the district court's refusal to bifurcate the trial. We affirm.
I.
E-Z-GO, a division of Textron, Inc., makes various utility vehicles. This case involves one such vehicle, the ST 350 Workhorse, derived from E-Z-GO's ubiquitous golf-cart designs but intended for use in other contexts (like farms and ranches). The Workhorse's pedal layout is illustrated below.
A key turns on the Workhorse's electrical system, but it does not start
the engine. Rather, there is a microswitch in the accelerator pedal, which means pushing the accelerator turns on the engine and propels the vehicle. The Workhorse also has a two-part brake pedal: The lower pedal is the vehicle's service brake, and the upper pedal engages the parking brake. Textron recommends disengaging the parking brake by depressing it again. But, important here, there is a second way to disengage the parking brake: by pushing the accelerator-the two pedals are mechanically linked. Thus, if the parking brake is engaged, depressing the accelerator will (1) turn on the engine; (2) release the parking brake; and (3) accelerate the vehicle.
Textron foresaw certain risks in this scheme, and it warned operators to always turn the key to the off position before exiting the vehicle. Yet, Textron was likewise aware that users disobeyed this directive from time to time. All this is to say, should one neglect to turn off the key, all it takes is something to fall with sufficient force on the accelerator to create a runaway vehicle. That is this case.
*155 Virginia ("Gini") and Robert Nester owned and used a Workhorse on their Texas ranch. One afternoon, Gini set out on the Workhorse to move a group of cattle, all the while storing a 50-pound bag of cattle feed on the Workhorse's floorboard. Once Gini reached a gate, she applied the parking brake and exited the vehicle. As far as the parties can surmise, the cattle then knocked over the feed bag onto the accelerator, causing the Workhorse to run over Gini and render her a quadriplegic.
The Nesters filed a diversity suit against Textron, bringing claims for design defect, marketing defect, and gross negligence (for punitive damages) under Texas law. The design-defect claim alleged the pedal configuration-specifically, the link between the accelerator and parking brake-created an unreasonable risk of unintended acceleration. At trial, the Nesters proposed the following four safer alternative designs.
First, and principally, the Nesters suggested that removing the link between the accelerator and the parking brake would cause the brake to remain engaged even if something hit the accelerator. Textron responded that the revving engine would overpower the parking brake, causing excessive wear on the brakes. Second, the Nesters suggested that a pedal guard (a shield of sorts) would stop objects from falling on the pedal. Textron responded that such a design would create a tripping hazard. Third, the Nesters suggested that a weight-sensitive switch in the driver's seat would turn off the engine when the operator exited the vehicle. Textron responded that the switch would render the Workhorse unusable in the farm context because the bumpiness of the terrain would cause the vehicle to constantly stop and start. And fourth, the Nesters suggested that a second, hand-operated parking brake would prevent future accidents. Textron responded that such a design, used only on vehicles with hydraulic brakes, could not be adapted to the Workhorse's mechanical-brake system.
Following the Nesters' case in chief, Textron moved for judgment as a matter of law. The district court denied the motion. The jury then found for the Nesters only on the design-defect claim. Furthermore, the jury found Gini negligent in her own right, apportioning 50% of fault to Gini and 50% to Textron. And finally, the jury awarded the Nesters over $15 million in pre-apportionment actual damages. After trial, Textron renewed its motion for judgment as a matter of law and coupled it with an alternative motion for new trial. The district court denied both.
Textron appealed, abandoning its arguments for rendition and seeking only reversal and a new trial on four grounds: (1) the jury received an erroneous definition of "safer alternative design"; (2) a single-answer jury question erroneously commingled both supported and unsupported alternative-design theories; (3) the district court incorrectly admitted two key pieces of evidence; and (4) the district court erred in refusing to bifurcate the trial.
II.
Textron's four appellate issues are distinct, each subject to its own standard of review. We take them in turn.
A. The Definition of "Safer Alternative Design"
"[S]tate law governs the substance of the jury instructions," but "the manner of giving instructions is controlled by federal law."
Turlington v.Phillips Petroleum Co.
,
Under Texas law, proof of a design defect requires proof of a "safer alternative design," which the district court defined in the following manner:
"Safer alternative design" means a product design other than the one actually used that in reasonable probability-
1. would have prevented or significantly reduced the risk of the injury in question without substantially impairing the product's utility; and
2. was economically and technologically feasible at the time the product left the control of Textron by the application of existing or reasonably achievable scientific knowledge.
This definition tracked both the relevant Texas statute 1 and pattern jury instruction ("PJC"). See TEX. CIV. PRAC. & REM. CODE § 82.005(b) ; Texas Pattern Jury Instruction, Design Defect § 71.4B (2016).
Textron argues, however, that the court erred by refusing to give a more expansive definition. Specifically, Textron requested inclusion of the longstanding Texas rule that a safer alternative design is not just one that would have prevented the injury in question but must also be one that would not have "impose[d] an equal or greater risk of harm" under other circumstances.
Uniroyal Goodrich Tire Co. v. Martinez
,
We review jury-instruction decisions for abuse of discretion.
Janvey v. Dillon Gage, Inc.
,
At step one, the Nesters do not dispute that Textron's requested instruction is a substantively correct statement of Texas law. In other words, everyone agrees that a safer alternative design must not render the product less safe in other circumstances.
The dispute hinges instead on the second step of our three-part test: Did the district court's instruction "substantially cover" the overall-safety component?
To impose liability on [the defendant], the plaintiffs must have presented evidence of an alternative design that (1) would have been safer for [the injured person] and prevented or significantly reduced his risk of injury, (2) would not have been less safe in other circumstances and increased the risks to other users, (3) would not have substantially impaired the [product]'s utility, and (4) was economically and technologically feasible at the time.
Genie Indus., Inc. v. Matak
,
But by looking with tunnel vision to the above excerpt from
Genie
, Textron misses the broader picture. The overall-safety component originated not from
Genie
but from a Restatement comment adopted by the Supreme Court of Texas in 1998.
See
Uniroyal
,
Textron's request faces a couple obstacles at the outset: (1) Texas courts routinely utilize the PJC's definition of safer alternative design
2
and (2) we have not once held that reliance on a Texas PJC was an abuse of discretion.
See
Bagby Elevator Co. v. Schindler Elevator Corp.
,
Nor does
Genie
itself upend the propriety of the PJC's core definition. At no point did the
Genie
Court purport to alter the existing parameters of safer alternative designs. Instead,
Genie
's substantive, introductory legal discussion reaffirms the long-understood statutory definition: "A safer alternative design is one that would have prevented or significantly reduced the risk of the injury, would not substantially impair the product's utility, and was economically and technologically feasible at the time."
Of course, the Court followed up its definition with additional clarification about what really constitutes a safer alternative design, including the overall-safety component from
Uniroyal
and the rule that the "design need not be actually built
*158
and tested."
More fundamentally, the extant definition of a safer alternative design-specifically, its requirement that such designs cannot substantially impair the product's utility-gave Textron the practical means to raise its concerns about the Nesters' proposed designs. Take, for instance, the Nesters' primary fix, the link-removal design. Textron's rebuttal to that theory was, in the words of one of its witnesses, that removing the link between the parking brake and accelerator was a "bad idea ... [b]ecause people are going to drive with the brakes engaged on the car and they're going to destroy their brakes." The semantic consequences therefrom-a vehicle with useless brakes versus a vehicle with useless,
unsafe
brakes-are one in the same. And Textron's closing argument confirms just that. There, Textron's counsel explained that removing the link "will create more injuries than having it on there" and, on the flip side of the same coin, that the link helps "increase[ ] braking effectiveness." The district court's instruction therefore gave counsel "the opportunity to emphasize the matters in his favor contained in [the] proposed instructions during jury argument"-a final consideration that weighs in favor of a substantial-coverage finding.
Alexander
,
At the end of the day, Textron asks us to hold that the district court erred by refusing to deviate from a standard Texas instruction. That definition permitted Textron to make its arguments about various tradeoffs to the jury (it did so) and gave those jurors a means to find in Textron's favor (they balked). Those circumstances do not instill in us substantial and ineradicable doubt about whether the jury was properly guided, and we do not find an abuse of discretion.
Janvey
,
B. The Commingling Issue
Textron does not dispute that the Nesters needed to prove only one safer alternative design to recover. Nor does Textron contest that two of the Nesters' four designs (the link-removal and pedal-guard designs) had sufficient evidentiary support. The dilemma, rather, is about how the jury question was formulated. Because the district court commingled the Nesters' four alternative designs into one broad-form question, Textron suggests that we cannot discern which of the designs served as the basis for the jury's "yes" verdict. Such a grouping was harmful, Textron concludes, because the other two designs (the weight-sensitive switch and hand-brake designs) lacked evidentiary support. The Nesters respond (in part) that, in this circuit, such a presumed-harm reversal is proper only when the charge commingles legally invalid theories, not those without evidentiary support.
Assuming for argument's sake that the Nesters offered insufficient proof on at least one of their alternative designs, Textron can prevail only if its understanding of (what we will label) the "commingling rule" is correct- i.e. , that the rule encompasses theories that lack evidentiary support. In this circuit, the rule is not so broad. A bit of history explains why.
Over a century ago, the Supreme Court first applied the commingling rule to legally invalid theories, holding that a multi-theory verdict "prevents us from perceiving
*159
upon which plea [the jury] found" and "therefore, [if] upon any one issue error was committed, either in the admission of evidence or in the charge of the court, the verdict cannot be upheld."
Maryland v. Baldwin
,
But something happened in 1991 that caused this circuit to reconsider the rule's breadth. The Supreme Court handed down
Griffin v. United States
,
In short order, a panel of this court applied
Griffin
to a civil case.
See
Walther v. Lone Star Gas Co.
,
Textron argues, however, that
Walther
violates our rule of orderliness because it is incongruous with cases that came before it,
see
,
e.g.
,
Lyle
,
Indeed, we need not evaluate Walther 's authority on a blank slate; a panel of this court has already answered the question:
This Court recently held, reversing a number of our earlier cases, that a jury verdict may be sustained even though not all the theories on which it was submitted had sufficient evidentiary support. Walther purported to be applying the Supreme Court's decision in Griffin v. United States , which the Fifth Circuit believed overruled cases such as Neubauer v. City of McAllen,766 F.2d 1567 , 1575 (5th Cir. 1985). Although its reasoning may be questioned, Walther appears authoritative in our Court at this time.
Prestenbach v. Rains
,
In light of Walther , the district court's grouping does not require reversal. No one suggests that any one of the Nesters' alternative-design theories was legally invalid. And Textron concedes by its silence that sufficient evidence supports at least two of the Nesters' designs. We therefore trust the jury to have sorted the factually supported from the unsupported.
C. Admissibility Issues
Textron challenges next the admissibility of two pieces of evidence. "A trial judge's ruling on the admissibility of evidence is generally reviewed for an abuse of discretion."
H & W Indus., Inc. v. Occidental Chem. Corp.
,
1. The Cowboys Stadium Video
Twelve days after Gini's injury, another unintended-acceleration event unfolded during a high-school football game at Dallas Cowboys Stadium. There, an unoccupied E-Z-GO cart (with the same pedal design as the Workhorse) collided with a group of people after two end-zone pylons depressed the cart's accelerator pedal. Textron produced a Youtube.com video of the incident during discovery. At trial, the Nesters sought to authenticate that video through Jim Fisher, a Textron corporate representative who watched video of the incident and later investigated and spoke with certain non-eyewitness officials from Cowboys Stadium. The district court admitted the video, and Textron now raises authentication and relevance challenges.
We begin with authentication. "This Court does not require conclusive proof of authenticity before allowing the admission of disputed evidence."
United States v. Jimenez Lopez
,
The Nesters presented no eyewitness authentication testimony. Yet, "[a]lthough authentication by eye witnesses is certainly preferable, we do not conclude under the circumstances of this case that the [video] lacked proper authentication."
*161
United States v. Clayton
,
As for relevance, Textron argues first that the Cowboys incident is dissimilar to the one at hand. And second, Textron argues the video serves no relevant purpose.
When offered for a purpose "other than to show notice," evidence of other incidents must be "closely similar to the facts and circumstances at issue."
Johnson v. Ford Motor Co.
,
As for the video's purpose, Textron points out that the later-occurring incident could not be used to show notice of a defect. We agree. But the video was nevertheless probative of the existence of a design defect-that is, whether the Workhorse's pedal design was unreasonably dangerous given the magnitude of the risk.
See
Nissan Motor Co. v. Armstrong
,
2. The "Best Protection" Letter
Six years before Gini's injury, children at a United Kingdom resort entered a Textron vehicle (with the same pedal design as the Workhorse) and depressed the accelerator, disengaging the parking brake and causing the vehicle to roll downhill. An investigator wrote to Textron with concerns about the vehicle's design. And, in response, Textron's vice president of engineering authorized a reply that suggested a solution: removing the link between the accelerator and parking brake. In fact, the letter characterized the link-removal solution-the same fix proposed by the Nesters-as both "feasible" and the "best protection" for users. The district court admitted the letter.
Here, Textron raises only a relevance challenge, and its substantial-similarity and relevant-purpose arguments tend to converge. In short, Textron argues the UK incident was not similar because it involved a gravity-induced occurrence as opposed to a forward-powered one. This distinction, according to Textron, means that the letter's recommendations were likewise limited to preventing roll-away accidents and bore no relevance to this case.
Two problems. First, the district court already agreed with Textron's argument insofar as it excluded evidence of the underlying UK incident and redacted the letter accordingly. And second, the fact that the letter addressed a slightly different risk caused by the same alleged defect does nothing to diminish its most probative function: The letter contradicted Textron's argument that the link-removal design would cause brake wear and tear. Put simply, the jury was free to wonder why Textron's vice president of engineering would recommend a design as "feasible" and the "best protection" if, in fact, that design would produce such catastrophic results. The district court did not abuse its discretion in admitting the redacted letter.
D. Bifurcation
Before trial, Textron asked the district court to bifurcate punitive-damages issues from the rest of the case so that net-worth evidence would not come before the jury. The district court denied bifurcation, and Textron's final appellate point challenges that decision.
"For convenience, to avoid prejudice, or to expedite and economize, the court may order a separate trial of one or more separate issues...." FED. R. CIV. P. 42(b). "A motion to bifurcate is a matter within the sole discretion of the trial court, and we will not reverse the court's decision absent an abuse of that discretion."
First Tex. Sav. Ass'n v. Reliance Ins. Co.
,
Textron's argument on appeal is straightforward: Because Texas requires its own trial courts to bifurcate liability from the amount of punitive damages, and because federal courts should look to state law in determining whether to bifurcate, the district court erred by not doing so here.
Textron's argument is halfway correct. Texas state courts are statutorily
*163
required to bifurcate liability from punitive damages. TEX. CIV. PRAC. & REM. CODE § 41.009(a). But, in our federal system, bifurcation is a case-specific procedural matter within the sole discretion of the district court.
Reliance
,
As for case specifics, Textron points to several instances in the record where the Nesters referred to Textron's size or net worth. But when a punitive-damages case is not bifurcated, those references are precisely what one would expect-Texas law lists the defendant's net worth as evidence the jury "shall consider" in determining the amount of punitive damages. TEX. CIV. PRAC. & REM. CODE § 41.011(a)(6). To hold (as Textron seems to suggest) that the mere presence of such evidence necessitates bifurcation would be to upend our federal discretionary framework and replace it with a judicial analogue to Texas's statutory mandate. That we will not do. Rather, on the circumstances of this case, we cannot see the district court's balancing of the Rule 42(b) considerations as an abuse of discretion. We therefore reject Textron's fourth and final appellate issue.
AFFIRMED.
As Textron reminds us, a design-defect claim in Texas is governed by more than just the products-liability statute; it is a sort of hybrid between the statute and Texas common law.
See
Hernandez v. Tokai Corp.
,
See
Kia Motors Corp. v. Ruiz
,
This is not the first time the Supreme Court of Texas has pointed to the statutory definition.
See
Hernandez
,
Textron cites two such post-
Walther
cases that phrase the commingling rule in the broader, pre-
Griffin
manner.
See
Muth v. Ford Motor Co.
,
Textron faults the Nesters for neglecting to present Youtube's custodian of records. But a proponent's decision to forgo one of Rule 902's means of self-authentication says nothing about whether the proponent met the more generic burden under Rule 901(a). Fed. R. Evid. 901(a). In fact, a proponent may authenticate with "circumstantial evidence" of the item's "distinctive characteristics and the circumstances surrounding its discovery."
United States v. Arce
,
Textron's responsive citation is misguided.
See
R.R. Mgmt. Co. v. CFS La. Midstream Co.
,
Textron argues briefly that we should at least reverse on Rule 403 grounds because the video's unfair prejudice substantially outweighs its probative value. But Rule 403's principal "function is limited to excluding matter of scant or cumulative probative force, dragged in by the heels for the sake of its prejudicial effect."
United States v. McRae
,
To be sure, some federal district courts have, in exercising that discretion in the first instance, looked to state punitive-damages law as a consideration.
See
,
e.g.
,
Rotello v. Clayton Homes of Del., Inc.
, No. 303CV-573,
Reference
- Full Case Name
- Virginia NESTER, Individually and as Next Friend of C.N. and S. N., Minors; Robert Scott Nester, Individually and as Next Friend of C.N. and S.N., Minors, Plaintiffs-Appellees, v. TEXTRON, INCORPORATED, Doing Business as E-Z-GO, Defendant-Appellant.
- Cited By
- 38 cases
- Status
- Published