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Click here for the full text of this decision FACTS:After finishing a pick-up basketball game, plaintiff Barry W. Muth Sr. and Julius Wineglass, both majors in the United States Army, got in a 1996, four-door Ford Crown Victoria and headed back to Escon village, site of a U.S. Army base, in Riyadh, Saudi Arabia. Wineglass was driving with Muth in the front passenger seat, both men wearing seatbelts. Traveling along a four-lane highway, they approached a right-hand curve going approximately ten miles per hour over the speed limit. Loose in the turn, Wineglass lost control of the car and ran it into a three-foot high “Jersey barrier” separating the two sides of the highway. Although the precise movement of the car was disputed, generally the left front wheel climbed the side of the barrier, causing the car to slide along the barrier for a short distance and, ultimately, to flip, landing on its roof and coming to rest about 209 feet from where it initially hit the barrier. Muth sustained a subluxation injury of the C5-C6 vertebrae in his spinal cord, leaving him a quadriplegic with only limited use of his arms and hands. Wineglass received minor injuries and is not party to this litigation. Muth and his family sued Ford in federal district court, bringing negligence and strict product liability claims. Muth alleged two design defects: first, that the 1996 Ford Crown Victoria contained “inadequate rollover/roof crush protection”; and second, that the 1996 Ford Crown Victoria contained an “inadequate occupant restraint system.” During the seven day trial, Muth focused on the roof strength defect, contending that a stronger and economically practical roof would have prevented the injury. Keith Friedman, Muth’s expert witness, testified that the roof was defective because it collapsed twelve to fifteen inches on the passenger side. Friedman testified that increasing the thickness of the steel in several parts of the roof structure could have reduced the “roof collapse” to three inches for $9 per car or two inches for $31 per car. Ford did not dispute that a stronger roof would be feasible. Rather, Ford contended that a stronger roof would do little, if anything, to prevent injuries in rollover accidents. According to Ford, during a rollover accident, the body drops toward the ground in other words, toward the roof. Because a normal seatbelt system allows the body to drop five inches, which is more than the normal three-to-four inches of clearance between head and roof, the only way to prevent injuries in rollover accidents is to use a five-point, NASCAR-style seatbelt with crotch strap, an impossibility in commercial vehicles. In short, Ford contended that a stronger roof would not help prevent head-and-neck injuries in rollover accidents. Attempting to prove this point, Ford relied on data from two crash tests: an early 1980s series from General Motors using Chevy Malibu sedans (the Malibu test); and a 2000-2001 series from Ford using the Controlled Rollover Impact System (the CRIS test). Both tests used slow-motion video and high-speed cameras to record the precise movements of cars and dummies during rollovers. Although the district court allowed Ford’s expert witnesses to discuss the data and conclusions drawn from the tests, the court excluded the demonstrative evidence video and photograph illustrating those results. At the close of all the evidence, Muth withdrew his negligence claim and only submitted his design defect claim to the jury. The jury answered “yes” to the question of whether there was “a design defect in the Crown Victoria at the time it left the possession of Ford Motor Company that was a producing cause of the injury” and awarded Muth and his family nearly $9 million in damages. Ford appealed. HOLDING:Affirmed. Regardless of who carries the burden of proof on a substantial alternation, the supposed alteration must be relevant to the theory of defect. Ford argues that the windshield had been replaced, that the original windshield contributed to the roof strength and that there was no evidence it was replaced with a Ford-manufactured product, that the replacement conformed to Ford’s design specifications, or that the replacement was installed correctly. However, the windshield’s contribution, if any, to the roof strength was not part of Muth’s theory of design defect. factual issues relating to the windshield and its contribution, if any, to the roof strength and Muth’s injuries, were not part of this case, and Muth presented sufficient evidence that the design defect, properly construed, was a producing cause of his injuries. The district court did not err when it denied Ford’s motion for judgment as a matter of law on the roof strength defect. The court agrees with Ford that Muth did not present sufficient evidence of a safer alternative design, a necessary element of Texas law on which Muth had the burden. Muth does not contest this point, stating in his brief that the inadequate roof strength design defect was the “entire focus” of his case. The question is whether that error makes any difference in this case. Ford contends that it does, citing the general rule, first recognized by the Supreme Court in Maryland v. Baldwin, 112 U.S. 490 (1884), that “when a case is submitted to the jury on a general verdict, the failure of evidence or a legal mistake under one theory of the case generally requires reversal for a new trial because the reviewing court cannot determine whether the jury based its verdict on a sound or unsound theory.” The court applies Braun v. Flynt, 731 F.2d 1205 (5th Cir. 1984). In that case, the court upheld a general verdict for invasion of privacy, despite an instruction authorizing recovery on either a “false light” theory, that was supported by the evidence, or on a “appropriation” theory, that was not. The court concluded that the “entire focus” of the plaintiff’s case was her claim that the publication of an indecent photograph of her in Chic Magazine, a Larry Flynt production, “created a false impression of her and damaged her reputation.” On review, the court was both “totally satisfied” and “reasonably certain” that the verdict in the plaintiff’s favor was not based on the erroneously submitted appropriation theory. “Without a doubt, a party can present evidence sufficient to invoke Baldwin’s rule, which requires reversal, but insufficient to sustain even a favorable jury verdict. Muth presented sufficient evidence of a design defect in the roof strength, and we are”totally satisfied’ or”reasonably certain’ that the jury decided in Muth’s favor on that defect and that defect alone.” Ford next objects to the district court’s exclusion of demonstrative evidence video and photograph from the Malibu test, a rollover crash test conducted by General Motors in the early 1980s using a Chevrolet Malibu, and the CRIS test, a rollover crash test conducted by Ford in 2000-2001 using a 1998-2000 model Crown Victoria. The evidence illustrates Ford’s claim that during rollover accidents, head-and-neck injuries can occur prior to any roof deformation. Importantly here, however, Ford’s expert witness testified at length to this conclusion. In other words, the jury heard the evidence; the only question is whether the district court abused its discretion when it forced Ford’s expert witness to testify without his visual aids. The similarities between Ford’s theory of the accident and the conditions of the CRIS test heighten the visual evidence’s prejudicial effect, and this is sufficient to justify the district court’s exercise of discretion in limiting Ford’s expert to oral testimony only. OPINION:Patrick E. Higginbotham, J.; Garwood, Higginbotham and Clement, J.J.

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