United States Court of Appeals, Fifth Circuit.
No. 94-60492.
James C. SATCHER,
Plaintiff-Appellee,
v.
HONDA MOTOR COMPANY, et al.,
Defendants-Appellants.
May 30, 1995.
Appeal from the United States District Court for the Southern District of Mississippi.
Before POLITZ, Chief Judge, REAVLEY and BARKSDALE, Circuit Judges.
REAVLEY, Circuit Judge:
The manufacturer and seller of Honda motorcycles appeal for the
second time1 a judgment in favor of a rider who lost his leg in a
collision between his motorcycle and an automobile. His vehicle had no
leg guards, an omission that plaintiff Satcher claims made the product
defective and unreasonably dangerous in a crash. The district court's
judgment enforces a jury verdict. We vacate the award of punitive
damages and otherwise affirm.
BACKGROUND
Satcher sued three Honda companies (collectively Honda) and
obtained a favorable jury verdict awarding him approximately $1 million
in actual damages and $2 million in punitive damages. In the first
appeal we held that under Mississippi law the recovery was barred
because the alleged defect, the lack of leg guards, was open and obvious
to the ordinary consumer. We reversed and rendered, reasoning that the
case should have never gone to the jury and that the district court
should have granted defendants' motion for summary judgment.
A few months after our first opinion, however, the Mississippi
Supreme Court made clear that the Fifth Circuit's rule, that an open and
obvious product defect could not be a ground for liability, was not
Mississippi law. The Mississippi Legislature also enacted a new statute
bearing on product liability. On rehearing, we vacated the prior
opinion and remanded the case to the district court to address these new
developments in Mississippi law.
The Mississippi case in question is Sperry-New Holland v.
Prestage, 617 So.2d 248 (Miss.1993). The court there approved a
risk-utility analysis in products cases, and held that the trial court
had not erred in applying that analysis rather than a consumer
expectations analysis. The critical distinction for our purposes is that
even if the dangerousness of the product is obvious to a reasonable
consumer, the plaintiff can still recover in some cases:
In a "risk-utility" analysis, a product is "unreasonably
dangerous" if a reasonable person would conclude that the
danger-in-fact, whether foreseeable or not, outweighs the utility of the
product. Thus, even if a plaintiff appreciates the danger of a product,
he can still recover for any injury resulting from that danger provided
that the utility of the product is outweighed by the danger that the
product creates. Under the "risk-utility" test, either the judge or the
jury can balance the utility and danger-in-fact, or risk, of the
product.
Id. at 254. The court further made clear that the "patent
danger" or "open and obvious" bar to recovery in products cases is not
to be followed in Mississippi:
Under the "patent danger" rule, "a product that has an open and
obvious danger is not more dangerous than contemplated by the consumer,
and hence cannot, under the consumer expectation test applied in
Mississippi, be unreasonably dangerous." Toney [v. Kawaski Heavy
Industries, Ltd.] 975 F.2d [162] at 165 [ (5th Cir.1992) ] (quoting
Melton, 887 F.2d at 1243).
Having here reiterated this Court's adoption of a "risk-utility"
analysis for products liability cases, we hold, necessarily, that the
"patent danger" bar is no longer applicable in Mississippi. Under a
"risk-utility" analysis, the "patent danger" rule does not apply. In
"risk-utility," the openness and obviousness of a product's design is
simply a factor to consider in determining whether a product is
unreasonably dangerous.
Id. at 256 n. 4. The court further held that Fifth Circuit
cases applying the consumer expectations test had incorrectly applied
Mississippi law. Id. at 256.2
The district court subsequently responded with a carefully
written Memorandum Opinion and Order on Remand. The court pointed out
that the new statute, Miss.Code Ann. Section(s) 11-1-63, Section(s)
11-1-65, did not become effective until July 1, 1993 (procedural) and
July 1, 1994 (substantive), too late to have any effect on the 1991
trial of the Satcher case. Moving to Prestage, the district court read
that decision to fault the Fifth Circuit's view of Mississippi law but
not to fault the trial court's submission in this case. While a
risk-utility analysis would have been appropriate under Prestage, the
defendant here requested the consumer expectations instruction that was
given and the jury returned a verdict of unreasonable dangerousness.
There being no error and no manifest injustice, the judgment was again
entered on the verdict.
DISCUSSION
A. The Impact of Prestage.
Honda argues that Prestage altered the analysis used in products
cases, changing the focus away from consumer expectations for the
product to whether the danger outweighs the utility of the product.
Honda contends that the open and obvious nature of the danger is only
one factor to consider, and that because the analysis now required is
fundamentally different, Honda is entitled to a new trial. In effect,
Honda argues that Prestage announced a new common law rule, and that new
rule should be applied retroactively so as to afford Honda a right to a
new trial.
Both the Mississippi Supreme Court and this court have held that
Prestage did not change the law. Prestage concluded that in prior
decisions the Mississippi Supreme Court "has clearly moved away from a
"consumer expectations' analysis and has moved towards "risk-utility.'"
617 So.2d at 253. It purported to apply a risk-utility analysis adopted
in earlier decisions. Id. at 253. On rehearing the first appeal in our
case, we explained that Prestage held that "contrary to prior Fifth
Circuit opinions and this panel's opinion in the instant case,
Mississippi applies a "risk-utility' analysis in products liability
cases and has done so since 1987." 993 F.2d at 57. We are not in a
position to contradict the Mississippi Supreme Court's own conclusion,
as well as that of our own panel, that Prestage did not change
Mississippi law. It is true, however, that from the perspective of the
parties in this case Prestage has changed the Fifth Circuit's reading of
Mississippi law in that the patent danger of a product is not a bar to
recovery. That change is not in Honda's favor, nor does it mean that
Honda was prejudiced by the law under which this case was tried.
The Mississippi court has explained to us in Prestage that the
risk-utility analysis of the danger of a product is the analysis to be
used, rather than that of only consumer expectations. Again, this
modification of our understanding of Mississippi law does not help Honda
in this case, and it will not justify affording Honda a new trial. The
modification adds strings to the bow of the plaintiff, not the
defendant. In the words of the Prestage court:
[E]ven if a plaintiff appreciates the danger of a product, he
can still recover for any injury resulting from that danger provided
that the utility of the product is outweighed by the danger that the
product creates.
617 So.2d at 254.
In the trial of this case the jury was instructed that Satcher's
product liability claim depended upon his proving that "the product was
in a defective condition making it unreasonably dangerous to the user."
It was then explained to the jury:
A product is in a defective condition unreasonably dangerous to
the user when it has a propensity or a tendency for causing physical
harm beyond that which would be contemplated by the ordinary user having
ordinary knowledge of a product's characteristics known to the
foreseeable class of persons who would normally use the product.
Acting under that instruction, the jury found for Satcher,
necessarily finding that the ordinary user would not contemplate the
full propensity or tendency of the lack of leg guards to cause physical
harm. To be sure, users know that motorcycles are dangerous, and they
know that the absence of leg guards might add to the chances of harm.
This jury could find, however, that Honda's motorcycles were more likely
to cost the rider a leg than the ordinary rider would contemplate. The
evidence reflects experience with motorcycle injuries beyond the
contemplation of the ordinary rider. Since the jury found for Satcher
on this issue, it is immaterial whether the utility of the motorcycle
without guards would weigh less than that danger. Satcher prevailed on
the first step and need not be concerned with the second step, and a
retrial to submit the second step cannot be justified.
B. Punitive Damages
The jury awarded and the district court entered judgment for
punitive damages of $2 million. Honda asks that we reverse this award
because applicable law and the evidence do not support it.
1. Preservation of Error
At the outset we address Satcher's argument that error was not
properly preserved on this point. Satcher points out that Honda did not
file a post-verdict motion for judgment under Fed.R.Civ.P. 50(b). Rule
50(a) provides for the filing of a motion for judgment as a matter of
law based on insufficient evidence prior to the submission of the case
to the jury. Rule 50(b) provides for a renewed motion (previously known
as a motion for judgment notwithstanding the verdict or JNOV motion)
after the verdict.
To fully preserve error on appeal for failure to grant a motion
for judgment, the moving party must file both a pre-verdict Rule 50(a)
motion at the close of all the evidence and the renewed Rule 50(b)
motion. An appellant who failed to do so in the district court is not
entitled to rendition of judgment in his favor on appeal, but is at most
entitled to a new trial.3
Honda did, however, move for judgment as a matter of law on the
issue of punitive damages at the close of the plaintiff's case and at
the close of all the evidence. After the verdict Honda filed a motion
styled a "motion for new trial," but it not only argued for a new trial
but reurged the motion for judgment, and specifically argued that a
directed verdict should have been granted on the claim for punitive
damages.
Honda's noncompliance with the rule was little more than failing
to style its motion correctly. We excuse technical noncompliance with
Rule 50 where its basic purposes have been satisfied. E.g., MacArthur
v. University of Texas Health Center, 45 F.3d 890, 896-98 (5th
Cir.1995); McCann v. Texas City Refining, Inc., 984 F.2d 667, 671 (5th
Cir.1993) ("In the past, the Court has been willing to excuse certain
"de minimis' departures from technical compliance with Rule 50(b).");
Bohrer v. Hanes Corp., 715 F.2d 213, 216-17 (5th Cir.1983), cert.
denied, 465 U.S. 1026, 104 S.Ct. 1284, 79 L.Ed.2d 687 (1984). The basic
purposes of the Rule are "to enable the trial court to re-examine the
question of evidentiary insufficiency as a matter of law if the jury
returns a verdict contrary to the movant, and to alert the opposing
party to the insufficiency before the case is submitted to the jury,
thereby affording it an opportunity to cure any defects in proof should
the motion have merit." Bohrer, 715 F.2d at 216. We conclude that
these basic purposes were satisfied here and that error was therefore
preserved under Rule 50.
2. Whether Satcher Is Entitled to Punitive Damages
Judgment as a matter of law is proper on an issue if "there is
no legally sufficient evidentiary basis for a reasonable jury to find
for that party on that issue." Fed.R.Civ.P. 50(a). In reviewing the
denial of a motion for judgment, a jury verdict "must be upheld unless
the facts and inferences point so strongly and so overwhelmingly in
favor of one party that reasonable men could not arrive at any verdict
to the contrary." Western Co. of North America v. United States, 699
F.2d 264, 276 (5th Cir.), cert. denied, 464 U.S. 892, 104 S.Ct. 237, 78
L.Ed.2d 228 (1983).
The law of Mississippi allows punitive damages only in "extreme
cases;" they "are not favored in the law and are to be allowed only
with caution and within narrow limits." Tideway Oil Programs, Inc. v.
Serio, 431 So.2d 454, 460 & n. 1 (Miss.1983). "[T]here must be some
element of aggression or some coloring of insult reflecting malice,
gross negligence, or ruthless disregard for the rights of others."
Illinois Cent. R.R. v. White, 610 So.2d 308, 320 (Miss.1992). In
regards to gross negligence, "punitive damages are ordinarily
recoverable only in cases where the negligence is so gross as to
indicate reckless or wanton disregard of the safety of others." Beta
Beta Chapter of Beta Theta Pi Fraternity v. May, 611 So.2d 889, 894
(Miss.1992) (quoting Belk v. Rosamond, 57 So.2d 461, 468 (Miss.1952)).
Under these standards, we conclude that Satcher was not entitled
to punitive damages. Evidence relevant to this inquiry-the dangers of a
motorcycle lacking leg guards and Honda's knowledge of such dangers-can
be summarized as follows. While police motorcycles have leg guards, all
motorcycles marketed by all manufacturers to the general public lack
them. Satcher's theory, therefore, was that Honda's conduct in
marketing its products in the same design of every motorcycle marketed
in the world to the general public was so extreme or outrageous as to
justify punitive damages.
Motorcycle leg injuries are a common and serious problem of
which Honda and the industry as a whole are aware. Leg injuries account
for a significant percentage of all motorcycle injuries. The concept of
protective leg guards on motorcycles has existed since the 1930's. A
number of scientific studies, of which Honda is aware, have been
conducted over the years regarding the efficacy of leg guards. A
British physician, Dr. Bothwell, conducted some early tests in the
1960's. Two engineers, Arthur Ezra and Harry Peterson, received federal
funding to conduct further tests at the Denver Research Institute (DRI).
They both testified as experts for Satcher, and were of the view that
"robust" leg guards or a reinforced "fairing" should be available on
motorcycles, and would have been effective in reducing Satcher's
injuries. They believe that all motorcycles lacking leg guards are
unreasonably dangerous products. An accident reconstruction expert, Dr.
Fogerty, testified to the same effect. Ezra and Peterson worked with
Dr. Bothwell on the DRI studies. Dr. Bothwell apparently disagrees with
Ezra and Peterson, although the exact nature of the disagreement is not
clear from the record.
"Conventional" leg guards or crash bars which are not as strong
as Ezra and Peterson recommend are available in kits and are added to
police motorcycles. Police crash bars are used in part to hold lights
or other accessories needed on police vehicles. Their efficacy as a
safety device is the subject of disagreement. Kenneth Harms, a former
Miami police chief with experience on the motorcycle patrol and in
investigating motorcycles accidents, believes that police crash guards,
particularly those used on Harley-Davidson motorcycles, are effective in
reducing injuries. Harms conceded that he had no scientific or
engineering expertise in motorcycle design. Harley-Davidson has
expressly recommended against the use of crash bars on its police
motorcycles.
Although certain studies indicate that leg guards are effective,
no government in the world has ever required them. No professional
organization that reviews engineering safety standards, such as the
Society of Automotive Engineers or the American National Standards
Institute, has ever recommended leg guards. Ezra believes that the
failure of the federal government to act on his own work was due to a
deregulatory environment in government during the Carter/Reagan years
and pressure from the industry.
Honda presented two well-qualified experts, John Snider and
Warner Riley, who opined that leg guards should not be used because
their safety benefits are outweighed by their safety disadvantages,
including the possibility of greater upper body injuries. For example,
Riley explained that the problem with unpadded robust bars is that they
can cause the cyclist to leave the motorcycle and land upside down, and
that padded crash bars increase in-flight whiplash, which can result in
a broken neck. They were also of the view that in this particular
accident Satcher would not have benefitted from crash bars. There is a
disagreement in the scientific community as to whether head impact
increases when crash bars are used.
Honda itself conducted certain crash tests in the 1960's. One
report concluded that at certain speeds crash bars are effective at
reducing leg impact in an angled collision. However, it found that in
broadside collisions "there seems to be an indication that each of the
various body area impacts is greater in the case of motorcycles equipped
with crash bars than in the case of those which are not," and that a
commercially available crash bar "has no protective effect or it has a
possible reverse effect in broadside collision[s]." This conclusion was
disputed by Ezra as not supported by Honda's own experimental data. The
report also noted that it was far from definitive.4 A Honda chief
engineer testified that "thus far we have created, tested, evaluated
various experimental devices; however, we have yet to come up with a
... practical as well as effective device that would protect the leg."
Summarizing, the jury heard evidence that (1) there is a genuine
dispute in the scientific community as to whether leg guards do more
harm than good, (2) no government or agency thereof has ever required
them, (3) no independent testing or professional organization has ever
recommended them, (4) one of the original researchers on the problem who
worked with two of plaintiff's experts disagrees with them, (5) the
industry as a whole categorically rejects the need for leg guards, and
(6) Honda's own testing on their use reached no definitive conclusions.
On this record we hold that no reasonable jury could conclude under
Mississippi law that this is an "extreme case" meriting punitive
damages, or that Honda's conduct rose to level of "malice, ruthless
disregard or gross negligence" required for the imposition of such
damages. We therefore vacate the award of punitive damages.
C. Evidentiary Rulings
Honda complains of several evidentiary ruling by the court.
"Under [Fed.R.Evid.] 103(a), appellate courts should reverse on the
basis of erroneous evidentiary rulings only if a party's substantial
rights are affected. Moreover, the party asserting error based on
erroneous rulings bears the burden of proving that the error was
harmful." Carroll v. Morgan, 17 F.3d 787, 790 (5th Cir.1994) (citation
omitted).
Honda complains that Kenneth Harms (discussed above) should not
have been allowed to testify as an expert on lower leg protection. "A
trial court's ruling regarding admissibility of expert testimony is
protected by an ambit of discretion and must be sustained unless
manifestly erroneous." Christophersen v. Allied-Signal Corp., 939 F.2d
1106, 1109 (5th Cir.1991), cert. denied, 503 U.S. 912, 112 S.Ct. 1280,
117 L.Ed.2d 506 (1992). Honda argues that Harms is not an engineer;
however Fed.R.Evid. 702 allows that a witness may be qualified by
"knowledge, skill, experience, training or education." The district
court did not manifestly err in finding him qualified to testify as an
expert. Among other qualifications, he was on the Miami police motor
squad for approximately nine years, and has investigated hundreds of
motorcycle accidents. Further, Honda does not demonstrate that its
substantial rights were affected. Harms' testimony regarding leg guards
was cumulative of the testimony of three other experts on this subject,
and he was thoroughly cross-examined regarding his lack of formal
scientific and engineering training.
Honda next complains that the testimony of Ezra and Peterson
regarding the severity of Satcher's injuries if a crash bar had been
installed was speculative or lacking in scientific certainty. We fail
to see any error here. Both experts were highly qualified. Both
testified that with proper leg protection Satcher would not have lost
his leg, and Ezra testified that he might have suffered no more than a
bruise. The testimony was properly allowed.
Honda also complains that the court erred in not allowing its
experts to change or modify at trial their opinions given in pretrial
discovery that the accident occurred in Satcher's lane. The experts
agreed before trial that the collision occurred in Satcher's lane, in
part because an eyewitness and the police officer who investigated the
accident had given statements supporting this conclusion. These two
individuals then gave different testimony at trial, suggesting that the
collision might have occurred in the automobile's lane. The district
court reasoned that it would be unfair to allow the experts to change
their testimony after discovery. Honda argues that this issue is
relevant to Satcher's contributory negligence and assumption of the
risk. While the lane in which the accident occurred is certainly
relevant to contributory negligence, Honda fails to show that its
substantial rights were affected. The jury heard from Satcher, the
eyewitness and the police officer at trial. The jury hardly needed
expert testimony to explain that driving in the wrong lane of traffic is
negligent. As to the question of which lane the accident occurred,
Honda fails to explain how expert testimony would have significantly
bolstered or discredited the testimony of the lay witnesses.
Finally, Honda complains that the district court erred in
failing to submit a jury issue on assumption of risk. The court did
submit instructions on contributory negligence. In Braswell v. Economy
Supply Co., 281 So.2d 669, 677 (Miss.1973), the Mississippi Supreme
Court held that where contributory negligence and assumption of risk
overlap and coincide, the defense of contributory negligence applied.
"If the circumstances show that the plaintiff may have assumed the risk
but also indicate that the plaintiff may have been negligent without
assuming the risk, then the two doctrines overlap, and only the
comparative negligence instruction should be given." Richardson v.
Clayton & Lambert Mfg. Co., 657 F.Supp. 751, 754 (N.D.Miss.1987). The
court did not err in refusing to submit the assumption of risk
instruction.
The award of punitive damages is vacated and in all other
respects the judgment is affirmed.
AFFIRMED IN PART, VACATED IN PART.
RHESA HAWKINS BARKSDALE, Circuit Judge, dissenting in part and
concurring in part:
"Spur not an unbroken horse; put not your plowshare too deep
into new land." Sir Walter Scott, The Monastery [1820]. Answer of the
Author of Waverley to the Letter of Captain Clutterbuck, ch. 25. Even
though this matter is governed by entirely new ground rules, the
majority refuses to remand it for a new trial. Accordingly, I
respectfully dissent from that part of its opinion (part A; "The Impact
of Prestage "); in all other respects, I concur.
The Mississippi Supreme Court's fairly recent holding in
Sperry-New Holland v. Prestage, 617 So.2d 248, 253-56 (Miss.1993), that
"risk-utility", rather than "consumer expectations", is, and has been
since 1988, the relevant analysis for Mississippi strict product
liability was, to say the least, most unexpected.5 See, e.g. Batts
v. Tow-Motor Forklift Company, 153 F.R.D. 103, 106 (N.D.Miss.1994)
(observing that with Prestage, "the Mississippi Supreme Court let the
rest of the world in on the best kept secret in Mississippi
jurisprudence"). But, Prestage provided only a broad statement of the
law of Mississippi; and, for the reasons set forth below, I cannot join
in the majority's application of this analysis, still in its infancy in
Mississippi, to justify not holding a new trial.
The majority has concluded that a new trial is not justified,
apparently because Honda would have no reasonable chance of success
under the risk-utility analysis. I cannot agree. To date, there are no
published cases in Mississippi either applying, or further defining, the
Prestage analysis.6 This alone gives pause to the majority's
conclusion that Honda would necessarily lose under risk-utility.
Furthermore, to the extent Prestage can be clearly understood, I am
troubled by the majority's application.
As stated in Prestage, the proper inquiry in Mississippi for a
strict product liability claim is whether "the danger-in-fact ...
outweighs the utility of the product". 617 So.2d at 254. But, the
Mississippi Supreme Court provided little, if any, guidance for making
this inquiry, stating only that, "[i]n balancing a product's utility
against the risk of injury it creates, a trial court may find it helpful
to refer to the seven factors enumerated in Professor John Wade's
article, On the Nature of Strict Tort Liability for Products, 44
Miss.L.J. 825." Id. at 256 n. 3 (emphasis added). Those factors are:
(1) The usefulness and desirability of the product-its utility
to the user and to the public as a whole.
(2) The safety aspects of the product-the likelihood that it
will cause injury, and the probable seriousness of the injury.
(3) The availability of a substitute product which would meet
the same need and not be as unsafe.
(4) The manufacturer's ability to eliminate the unsafe character
of the product without impairing its usefulness or making it too
expensive to maintain its utility.
(5) The user's ability to avoid danger by the exercise of care
in the use of the product.
(6) The user's anticipated awareness of the dangers inherent in
the product and their avoidability, because of general public knowledge
of the obvious condition of the product, or of the existence of suitable
warnings or instructions.
(7) The feasibility, on the part of the manufacturer, of
spreading the loss by setting the price of the product or carrying
liability insurance.
Id. The majority seems to have found one of the above factors,
number six, to be dispositive, stating:
Acting under [a consumer expectations] instruction, the jury
found for Satcher, necessarily finding that the ordinary user would not
contemplate the full propensity or tendency of the lack of leg guards to
cause physical harm.... Since the jury found for Satcher on this issue
[consumer expectations], it is immaterial whether the utility of the
motorcycle without guards would weigh less than that danger. Satcher
prevailed on the first step and need not be concerned with the second
step, and a retrial to submit the second step cannot be justified.
By the foregoing, I understand the majority to conclude that the
jury's finding on consumer expectations trumps, even under the
risk-utility analysis.7 This runs contrary to even the minimal
guidance offered by Prestage.
In light of the seven factors suggested by Prestage, a
consumer's awareness of the danger inherent in a product is but one
factor to consider in the risk-utility analysis. See also Prestage, 617
So.2d at 256 n. 4 (rejection of "patent danger" rule). Moreover,
Prestage held that foreseeability of danger was not dispositive: "In
determining whether a product is unreasonably dangerous a reasonable
person must conclude that the danger-in-fact, whether foreseeable or
not, outweighs the utility of the product." Id. at 255. (emphasis
added) (quoting Whittley v. City of Meridian, 530 So.2d 1341, 1347
(Miss.1988)).8
Rightfully so, the majority does not undertake to predict the
outcome in this case when all of the suggested factors for risk-utility
analysis are applied. With almost no guidance on risk-utility from the
Mississippi courts, we cannot forecast how a jury might weigh the
factors and evidence here. The majority notes correctly that the
risk-utility analysis "adds strings to the bow of the plaintiff, not the
defendant" but, as noted, a panel of this court held that, as a matter
of law, Honda prevailed under the consumer expectations analysis, and
that holding was vacated only because Prestage signaled that consumer
expectations was no longer the test in Mississippi. See note 3, supra.
To hold now that Honda necessarily loses is a leap I cannot take.
The risk-utility analysis hardly leaves Honda with no "strings
in its bow". For instance, perhaps it could make a case for the high
utility of motorcycles in general. For another example, and as to the
design at issue, Honda offered evidence that the addition of leg guards,
although offering greater protection against the injury suffered by
Satcher, might actually increase the likelihood of fatal injury-an
obvious important factor in a risk-utility analysis. Does this mean
Honda will prevail? I would not-and, indeed, cannot-hazard a guess. I
note only the obvious: the ground rules have changed dramatically in
Mississippi, and those rules have yet to be defined with any precision.
As such, I cannot agree with the majority that it would be unjustified
to permit the parties to present their cases to the jury under the
proper legal standard. To the contrary, in my opinion, justice requires
it.
Accordingly, I must regretfully, but most respectfully, dissent.
footnotes begin ----------------------------------------------
1 Satcher v. Honda Motor Co., 984 F.2d 135 (5th Cir.)
(reversing and rendering in favor of Honda), vacated, 993 F.2d 56 (5th
Cir.1993) (on petition for rehearing remanding to district court).
2 Some federal judges have had difficulty understanding
Mississippi products liability law, including the meaning of comment i
of the Restatement (Second) of Torts Section(s) 402A (re "consumer
expectations"). See Melton v. Deere & Co., 887 F.2d 1241, 1246 (5th
Cir.1989) (Reavley, J., dissenting). No Mississippi law controlling
this case is "in its infancy," as the dissent characterizes risk-utility
submission.
As we emphasize below, the jury has found the product without
leg guards to be unreasonably dangerous, and has also found that the
ordinary consumer would not appreciate the danger. The majority will
not speculate about what a new jury would decide, but we are convinced
that Mississippi courts would find nothing in this record to justify
ordering plaintiff to retry his case ten years after his injury.
3 Phillips v. Frey, 20 F.3d 623, 627 (5th Cir.1994); Zervas
v. Faulkner, 861 F.2d 823, 832 n. 9 (5th Cir.1988); Smith v. Transworld
Drilling Co., 773 F.2d 610, 615 (5th Cir.1985).
4 It states in its preface:
To judge the propriety of equipping motorcycles with crash bars,
we must, as described later, have the cooperation of many other studies.
The present test is by no means satisfactory; it is a mere fragment of
the long-term test program extending over the future. Therefore, a
definitive conclusion cannot be drawn from the present test results;
however, our approach to the elucidation of effect of the crash bar is
to be carried on for the improvement of motorcycle safety.
5 The author of the majority opinion is one of the few who
previously questioned Mississippi's adherence to the consumer
expectations test. See Melton v. Deere & Co., 887 F.2d 1241, 1246-47
(5th Cir.1989) (Reavley, J., dissenting).
6 Not only are there no cases expounding Prestage, there are
also no Mississippi cases detailing the analysis of the cases on which
Prestage relied: Whittley v. City of Meridian, 530 So.2d 1341
(Miss.1988), and Hall v. Mississippi Chemical Exp., Inc., 528 So.2d 796
(Miss.1988). Indeed, one court has observed that between 1988, when
Mississippi is said to have adopted the risk-utility analysis, and 1993,
when Prestage was decided, at least one Mississippi Supreme Court case
implied that the consumer expectations test was still applicable. See
Batts, 153 F.R.D. at 108-09 (citing Kussman v. V & G Welding Supply,
Inc., 585 So.2d 700, 703-04 (Miss.1991)).
7 It seems more than somewhat anomalous to give credence to
the jury's verdict for Satcher under the consumer expectations test,
when, on appeal from that verdict, our court found that, under this
(consumer expectations) analysis, Honda was entitled to judgment as a
matter of law; accordingly, we reversed and rendered judgment for
Honda. Satcher v. Honda Motor Co., Ltd., 984 F.2d 135, 138 (5th Cir.),
vacated, 993 F.2d 56 (5th Cir.1993). Our court vacated its opinion, not
because of a change of heart regarding Honda's entitlement to judgment
under the consumer expectations analysis, but because Prestage revealed
that consumer expectations was no longer the test in Mississippi.
Satcher, 993 F.2d at 57-58.
8 Prestage reads:
In a "risk-utility" analysis, a product is "unreasonably
dangerous" if a reasonable person would conclude that the
danger-in-fact, whether foreseeable or not, outweighs the utility of the
product. Thus, even if a plaintiff appreciates the danger of a product,
he can still recover for any injury resulting from that danger provided
that the utility of the product is outweighed by the danger that the
product creates.
Id. at 254 (emphasis added). The Prestage court made this
statement as a comparison between risk-utility and consumer
expectations-noting that, with risk-utility, unlike consumer
expectations, the plaintiff does not automatically lose only because he
"appreciates the danger of a product". Of course, the court did not
mean that the opposite was true. See Id. at 254, 255 n. 3 & 4.
footnotes end ------------------------------------------------