By Leah S. Poniatowski, J.D.
A jury verdict against the manufacturer of a utility vehicle was not reversed on appeal, as the U.S. Court of Appeals for the Fifth Circuit held that the lower court did not abuse its discretion in: (1) the jury instruction provided on the issue of "safer alternative designs"; (2) admitting certain pieces of evidence; or (3) not bifurcating the trial. Thus, the appellate panel affirmed the $15.8 million award against Textron after a rancher was seriously and permanently injured when the parking brake on a utility vehicle was released (Nester v. Textron, Inc., April 18, 2018, Reavley, T.).
The rancher and her husband purchased an E-Z-GO Workhorse ST350 (Workhorse), a utility vehicle manufactured by Textron, Inc. d/b/a E-Z-GO (Textron). The Workhorse is a golf cart-like vehicle, and its ignition switch is operated by using a key which turns on the vehicle’s electrical system. The engine does not start until the accelerator is depressed, and releasing the accelerator turns off the engine. The Workhorse also uses a "kick-off" brake system whereby the parking brake is physically linked to the accelerator pedal so that depressing the accelerator automatically releases the parking brake.
On the day of the accident, the user loaded a 50-pound bag of cattle feed onto the passenger-side floorboard of the Workhorse. She then drove the vehicle into the pastures on the ranch to attend to the cattle. At a gate separating fields, she stopped the Workhorse, applied the parking brake, and exited the vehicle to open the gate. She did not turn the key to the "off" position before exiting. While she walked to the gate with her back to the vehicle, the bag of cattle feed fell onto the Workhorse’s accelerator pedal, releasing the parking brake and causing the Workhorse to accelerate forward. The vehicle struck the user, knocking her to the ground and running her over. Her injuries rendered her quadriplegic and in need of constant medical care.
Trial court. The jury found that there was a design defect in the utility vehicle when it left Textron’s possession that was "a producing cause" of the rancher’s injury [see Products Liability Law Daily’s April 4, 2016 analysis]. However, the jury determined that there was no defect in the warnings or instructions that was a producing cause of the injury when the vehicle left the manufacturer’s possession. In addition, the rancher’s own negligence also played a role, proximately causing her injury, the jury said. As a result, the jury found that Textron and the rancher equally shared, 50-50, responsibility for the rancher’s injury. She was awarded over $15 million. Textron filed an appeal to reverse the jury verdict on the grounds that: (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.
"Safer alternative design." The Fifth Circuit held that the jury instruction on the issue of safer alternative designs given at trial was not an abuse of the lower court’s discretion. Textron argued that the pattern jury instruction given was not expansive enough because it did not include the longstanding Texas rule that a safer alternative design must also not "impose an equal or greater risk of harm" under other circumstances. The Fifth Circuit explained that the pattern jury instruction provided to the jury has been commonly administered and has retained its core definition for the last two decades. Textron had the opportunity and presented arguments to the jury about why it did not implement another design or why the alternative designs would not be feasible, which the jury rejected. Because the instruction "substantially covered" the overall-safety component, Textron’s argument was rejected.
Commingling. The dilemma, rather, was about how the jury question was formulated. Because the district court commingled the rancher’s four alternative designs into one broad-form question, Textron suggested that the Fifth Circuit could not discern which of the designs served as the basis for the jury’s "yes" verdict. Such a grouping was harmful, Textron concluded, because the other two designs (the weight-sensitive switch and hand-brake designs) lacked evidentiary support. The rancher responded (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.
Historically, the U.S. Supreme Court held that jury verdicts based on multiple theories could be overturned if there was error on any issue, but the breadth of this "commingling rule" was reconsidered and limited in the criminal context to legally invalid theories. A Fifth Circuit panel applied the Supreme Court’s decision—the Griffin rule—in a civil case to hold that a jury verdict will not be reversed "simply because the jury might have decided on a ground that was supported by insufficient evidence." Textron argued that this application violated the rule of orderliness, but the Fifth Circuit explained that the earlier panel aptly relied on intervening High Court precedent. Moreover, there was no argument that the alternative design theories were legally invalid.
Admissibility. The Fifth Circuit concluded that there was no abuse of discretion when the lower court admitted a video of an unintended acceleration incident and a redacted letter into evidence. With respect to the video, which showed an E-Z-GO cart colliding with a group of people at a football game in a similar fashion to the incident at bar, there was sufficient evidence of its authenticity and of its relevance. First, the video was sufficiently authenticated by the testimony of a corporate representative of Textron who watched the video and corroborated its contents with what was presented in an investigation of the incident, in addition to Textron itself presenting the video during discovery. Second, the video was relevant because it was probative of the existence of a design defect. With respect to the redacted letter, which was issued by Textron suggesting removing the link between the accelerator and parking brake following a downhill roll of a vehicle in the United Kingdom, its admission was relevant.
Bifurcation. The lower court did not abuse its discretion when it declined to bifurcate the punitive damages issue from the remainder of the case because under the federal rules, bifurcation is case-specific and within the discretion of the trial court. Because the lower court was not bound by Texas law on the issue, this argument was rejected.
This case is No. 16-51115.
Attorneys: Russell S. Post (Beck Redden, LLP) for Virginia Nester and Robert Scott Nester. Michael W. Eady (Thompson, Coe, Cousins & Irons, LLP) for Textron, Inc.
Companies: Textron, Inc.
MainStory: TopStory DesignManufacturingNews WarningsNews MotorVehiclesNews DamagesNews EvidentiaryNews LouisianaNews MississippiNews TexasNews
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