S. M. v. Dorel Juvenile Group Inc.

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:11-cv-00005-JPJ-PMS. Copies to all parties and the district court/agency. [999070779]. [12-1500]

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UNPUBLISHED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Affirmed by unpublished per curiam opinion.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

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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Unpublished opinions are not binding precedent in this circuit.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.
subsequently

moved

for

a

new

trial,

alleging

that

Musick
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.
motion

and

entered

judgment

for
3

The court denied Musick’s
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

Motor

Vehicle

the

booster

Safety

seat

Standard

in

213

compliance

(“FMVSS

with

213”),

Federal

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

accordance

with

our

like

the

one

explanation

that

below,

injured
we

S.L.M.

reject

In

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.”
Evid. 401.
its

Fed. R.

Relevant evidence may nonetheless be excluded “if

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

probative
prejudice.”

on

questions

value

of

of

relevancy

relevant

and

evidence

in

balancing

against

any

the
undue

United States v. Zandi, 769 F.2d 229, 237 (4th Cir.
4

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1985)

(citing

(1974)).

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Hamling

v.

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United

States,

418

U.S.

87,

124-25

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

sought to be reduced by the statute or regulation.”
(Third) of Torts:
Danek

Med.,

Inc.,

the

risks

Restatement

Prod. Liab. § 4(b) (1998); see Talley v.
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

omitted))).
is

not

an

1174,

1177

(4th

Cir.

1997)

(internal

citation

Were we to accept Musick’s position that FMVSS 213
“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 rearend 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.
C.F.R. § 571.213 S2 (2012).

49

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

circumstances,

.

.
we

.

J.A.

1467. 1

attribute

to

standards.”

could

hardly

Under
FMVSS

these

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

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for

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the

omitted)).

purpose
Indeed,

for

which

the

conformity with Turner.

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jury

it

was

is

intended

instructed

See J.A. 1657.

in

(citation
absolute

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

plaintiff’s

generally.
expert

on

See,

e.g.,

biomechanics,

J.A.
Dr.

699

(testimony

Stefan

Duma,

of
that

padding “[a]bsolutely would have effectively eliminated any risk
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of

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skull

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fracture,”

without

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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

2

ruling

in

Marconi,

under

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
conclude

on

the

that

the

above

considerations,

district

court

we

abused

are
its

unwilling

to

discretion

in

admitting evidence of Dorel’s compliance with FMVSS 213.
have

also

regulation,

examined
and

we

the
can

jury

instructions

discern

no

abuse

of

relating

We

to

that

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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