today nestor versus textron incorporated and that theory was design defect for having found the consumer plaintiff to also be compared to be responsible for causing their currency injuries that proceeded to answer a comparative fault question or compared to responsibility question assigning fifty percent of the responsibility on the manufacturer and fifty percent of the responsibility on the consumer planted under texas law this was a close case the simon of one percent responsibility more on the plaintive would have  nestors recovery completely it was a very close case first case i ever tried was one of the early comparative negligence cases and i was defending in it was fifty one forty nine so that's what the jury said so i know exactly what you're talking about it is a close case and there's things that you can point to on why the jury reached the decision it did on the design defect question and why they had a one percent swing on the comparative fault question and they can generally fall into fo categories one not instructing the jury completely on all elements of a safer alternative design number two a shotgun approach to proving safer alternative design coupled with a general verdict three inflammatory other just fairwinds it required it doesn't part perfect trial but it requires a fair trial but here all of these errors can be can point to a reason to reverse the judgement and send it back long granule eyeing the jury issue and i have some sympathy with you when i was on the supreme court of texas argued that that's what we should do but on the criminal side we do not if it's unless it's an element of the offense defendant can be convicted on one of many theories the jury doesn't have to agree on which it is i mean why should we treat  cases differently than criminal cases the laws developed differently for whatever reason and we go back to maryland versus baldwin on that particular principle and maryland versus baldwin was a civil case and cases divided by  united states supreme court subsequent to that case that followed that and it followed all the way until we until it was decided in the the griffin case that sided by both parties and that was a criminal case and author opinion was justice scalia in and discuss maryland versus baldwin did not discuss the baldwin principle did not discuss civil cases subsequent to that case there was some discussion on whether or not the griffin case is going to be u sed in the civil context and there's some discussion and the nestors brief on that issue there's an discussion in the footnotes of various opinions from this court but ultimately this court went back to the baldwin principle as it had before and applied that in the movie case and most recently broadly applied it in the mackay case so it's developed differently in the civil system than the criminal system but the baldwin principle is alive and well in this circuit and under the bal principle if you smith more than one theories to the jury and you cannot tell if the jury relied upon an invalid theory or one not supported by the evidence it requires in the case back and in this particular appeal there's an easy target for that and again in this in this case the way it was tried there was not one claim safer alternative design there was for now it's it's an interesting history because when the trial starts there's only one because the expert for the nesters has been precluded on giving expert testimony on anything but disengaging the linkage between the accelerator and the parking brake the key kickoff feature but the nestors insisted on developing three more alterna designs just based upon cross examination of tech strongs witnesses and those others were a separate hand operated brake a pedal guard and an operator present swifts the skies switch in the seat where you sit on the c and get off the seat the engine terms off so they had all of these different theories no not all of them were supported by sufficient evidence and the easiest  pick off in this bunch is this separate hand operated brake now the separate hand operated brake notion comes from this idea it's used on bigger cars the nestors cart was a  cylinder eleven horse power are fifteen mile an hour cart it was a light duty cart there are bigger utility carts that you can buy that are in that thirteen fourteen thousand dollar range of one of the testimony in the record that have hydraulic brak so the idea of being wealthy exist over here well we can just take this particular break and we can put it into the nestors car but the nestors cart had a mechanical brake system which is different than a hydraulic brak system and so the test i came from the witnesses for textron said no one knew how to adapt that technology to the nestors car it would be a completely different design the vehicle would have to be redesigned it would be more expensive it would be a totally different vehicle it would be significantly changed and again the nestors cart was like forty eight hundred dollars brand new and this completely changes the car completely so where was the testimony of what it would cost to adapt that technology to their car and there wasn't any and in fact the testimony that i've just referred to indicate that it would have been prohibitive so that's the easy one to pick off there under texas law a consumer must prove that the alternatives on his boat technologically and economically feasible and that particular design was never proven to be economically feasible now the first issue that was briefed it was that brought to the attention of the jury that if that was not economically feasible was a brought to the it all the designs were argued it was argued that they had not proven the alternative designs it was more broadly argued a trade off of the benefits between comparing textron design with the designs advocated by the nestors well but my question was on the alternative vision of the hydraulic brake was it was it pointed out that that was not economically feasible it was pointed out that no one knew how to do it and if there was you didn't know how to do it you can even draw design to it and you can draw design or have something in price you know you have any evidence of know that whether or not it's economically feasible so it was argued you didn't know how to do it no one knew there was no plan to do it and so you're missing all of the elements that would lead into being economically feasible and yes it was argued that the carts they had in those particular handbrakes were higher in cart and cost a lot more money so that was presented but the other aspect that was what i mentioned is the the trade offs and this was part of the first issue that was argued on in the briefing and that's this issue of the failure to instruct the jury on all elements of safer alternative design the texas supreme court recently in like twenty sixteen outlined the four things that a plaintive must prove on say for turned design i thought the pattern jury charge was used here the pattern jury charge was used here and this is the inconsistency that we see the pattern jury charge list tells the jury that they simply need to find that there is a safer alternative design and it tells them what a safer alternative design is and that's one other than the manufacturer's design that would result probability have prevented or significantly reduce the risk of occurrence of the injury in question without substantial impairing the products utility and was economically in technologically feasible there's really three things in there and if we take those three things and we compare it to what the texas supreme court says must be proven we find that texas supreme court has applying i would assume a very similar logic if we look at the desmond case that's talked about in the briefing ford motor company versus the desmo and that was reversing a pattern charge on the instruction on proximate cause which it had been in the books for one hundred years because it omitted the essential element of substantial factor and that's not that different from this situation here because we have a pattern charged that doesn't have all of the elements of safe or all turned design of which the texas supreme court indicated that a plaintive must present evidence and it's particularly important is that second factor that they indicated should be that there must be evidence on and that is  design that would not have been less safe in other circumstances and increase the risk to other users now this particular element was not by accident because the court emphasizes this element in a couple different ways and saying that it's not sufficient that an alternative zein would have reduced or prevented the harm suffered by the plaintive it would also introduce into the product other dangers of equal or greater magnitude when a valid rating evaluating the results of a design alternative the overall safety of the product must be considered and this what we broadly refer to as this overall safety instruction and this but to show as as to which of the the four alternative designs that were that were presented  would that apply it applied to three of the four the three of the four and that was exactly how textron defended its product at trial because again we're looking at  fixes this and causes that is not a fix quote they all have their negatives so let me run down this list and here's the evidence of what the trade offs wore in this one this was so important to not get this instruction disengaging that kick off feature the testimony was a trial that if you disengage that kickoff feature and it doesn't release the parking brake people just get in the car push on the gas and they drive through the brakes and it ruins the brakes and in fact nick more sr product manager testified that he had seen it happen with similar utility carts after textron acquired bad boy buggies and that testimony came from several other witnesses so it was a trade off so if you disengaged it you're just going to create a different problem your wear out the brakes faster and that's a safety problem the operator presence which in the sea that two had trade offs because it had been tried it didn't work you have to calibrate it for everybody so you pick someone who's small someone who's big someone in between and it has to be calibrated so that when there's a shift in the weight in the seat it's not too much to shut the engine up because otherwise it backfires it stalls and of course that happens at the most inopportune time so the testimony there was quote negatives outweigh the positives you can do it because it's problems you cannot correct tried and it didn't work no one does it third one p guards this was also argued to be created bigger and greater risks in other situations now this peleg are about at the mit that when i first brought it up they were trying to cover the pedal but it's not a covering the pedal is nothing more than a piece of metal that is welded next to the accelerator and you can see that in the pictures that are in the appendix now that this creates a tripping hazard so someone who's getting into slide across the seat in the seats design that enter the cart from either side it's a tripping hazard to bump into that particular guard in there and that's why it's not used in the farm and ranch environment so these were all things that were tradeoffs they were pros and cons these  gene so there was no question the the tech strongs request instruction it was a correct statement a law judge what would you say was the the primary alternative designed in the trial the primary one that they had the most proof on was disengaging the kickoff feature and again it has to be that way because it before trial at the dell bear hearing their primary expert mr newbold he had four alternatives and he left the hearing being only able to testify as to one and that was the kickoff feature that is the one that he had actually tested and the testimony on both of those was robust a trial however insisting upon all four alternatives was a consistent theme throughout the trial so this is not a situation as in move versus ford motor company this is a situation where all of these were up for sized and in fact in the reply brief we go through the arguments during closing and again counsel for plan of says tells the jury i don't need to go four for four i will have to go one for four and then he proceeds to go through each one of those fo please the court the plaintiffs in this case presented one liability theory on design defect and that was that the kick off brake system was defectively designed they presented four safer alternative designs as evidence to prove that single liability theory of design defect that is not for separate liability claims and i think that in that sense this case is controlled by the rule of well logics which recognizes that when there is a single valid theory that is submitted to the jury there is not an argument about presumed harm from co mingling theories based on multiple factual allegations that would prove that theory and so i think well logics is really the narrow controlling case here and i notice it's not a rule that textron actually confront seriously in the reply brief textron confronts instead it's a view of the gryphon rule which is distinct from well logics if you think about this in the standpoint of a simple negligence case involving a car collision a plaintiff may argue that a defendant was negligent in failing to keep a proper lookout negligent  speeding negligent in failing to apply the brakes no one suggests that you have to get separate findings on each of those factual allegations of negligence that's the same here that's the well logics rule and that should control this case but let me also address the rule judge owen you asked about griffin and the supreme court's rule that this concern about commingling theories is in a plausible when the challenge on appeal is that one theory was not supported by sufficient evidence the reason of course is that justice scalia said jurors are well equipped to determine which theory is supported by the evidence and we presume that they follow the instructions and do so now we could have a theoretical debate about the extent to which that rule has been translated to the civil context but there's no the debate to be had because under this circuit's rule of orderliness that griffin principle has been applied to the civil context the court did it originally in the walther decision in one thousand nine hundred two and it has sense recognized that walther is circuit precedent and i would just highlight for the court the preston bach decision which recognized that was there was authoritative precedent in a case like this one where you had five allegations of negligence and appellant argued two of those five run supported also the advocate case by judge higginbotham after his opinion in the move case recognized that griffen applied in that case you had an allegation of formal and court's attention rodriguez versus rebel supports the citation is two forty two fed third five sixty seven that's a two thousand and one opinion authored by judge smith and in that case the court followed griffen and recognized walther as a stablish in the rule that this whole doctrine of presumed harm is in a political when factual sufficiency is at issue now the argument is made by textron that this court has somehow returned to a former rule in the move case of course that's not a stable legal proposition under this circuit's rule of orderliness because walter was decided after griffen recognize that griffin is the law while there has never been overruled move did not even address walther so move could not have overruled that line of circuit precedent but in fact moot didn't have to confront that issue because in muth judge taken botham said there are two distinct design defects at issue and it's evident that all of the evidence at trial was directed to one theory and so he applied the real simple certainty exception and so move shouldn't be read as trying to retreat and anyway from this circuit precedent it didn't have to decide that question and in the make a decision a couple of years ago simply cited for its general principles but because the issue had not been preserved there was no need for the court to address the controlling legal rules so i think that it's actually quite evident when you study the fifth circuit precedent closely that th textron position is legally untenable the final point i'll make on this judge owen you asked about the primary theory of trial and i think textron counsel is right that the primary theory was always the theory of decoupling the linkage between the accelerator and the all four alternative to science were stressed the jury it is fair that they were all addressed with the jury i think that the emphasis was placed on decoupling the bright but i certainly would acknowledge that all four theories were developed in the evidence and argued to the jury and because coun argued about one theory that is the hand operated parking brake i will briefly address the evidence on that theory because that's an independent way to affirm here that the argument is made that there was somehow a deficiency in the proof on the ability to use this design with a comparable workforce like the s t three fifty that was used here that was simply a debate about utility for the jury the jury heard evidence on both sides they argue that this model of a hand operated parking right could be not be translated to a hydraulic model but in fact this very same hand operated parking brake was a standard feature on a model that had comparable load capacity and a comparable speed rating you can see done in the record at pages one four four nine zero to ninety one and one four nine four nine council argues about the economic feasibility of this modification the evidence at trial was that it would only cost an additional seven dollars to add the key elements and you can see that in the record at page one four four nine one now of course there was a dispute about this text ron's witnesses wanted to deny that it would be portable to a mechanical braking system but that was a dispute for the jury to decide recall that textron conceded that it did not challenge technique or feasibility it specifically said in both of the rule fifty motions and specifically said to judge pittman when it presented its rule fifty motions we do not contest technological feasibility so all of these arguments now about how they think it would be difficult to import this hand operated parking brake to this particular design are way at best what they had was a debate that they presented to the jury about the relative utility of doing what they acknowledged was economically and technologically feasible and that was bringing a hand operated let me turn if the court has no questions about that broad form submission issue to the jury instruction on the safer alternative design i think the key rule here to remember is that the question that is squarely before the court is whether a jury charge that specifically tracked not only the texas pattern jury charge but the texas statute defining safer alternative design and which has never been questioned by any texas court well i've looked at the statute in and the supreme court's decision after that statute was passed the genie opinion because if you look in the genie opinion at part three of the opinion that discusses the test for a safer alternative design at the beginning of that section where the supreme court explains what a safer alternative  it's cites precisely the statutory definition and it cites to the statute that is the legal it then goes on to say in showing safer alternative design a plaintiff cannot introduce a design that would reduce overall safety at the end of that section after the court has discussed the evidence in a bit of dictum candidly the court less the four elements that it says were required by the evidence but that's not associated with any legal analysis it's not associated with any authority and the court is not holding that there was a deficiency the court is actually holding that there was evidence of safer alternative science so i think that what textron has done here is good lawyers and i credit them they have cherry picked an attractive bit of dictum out of the opinion but it's not the statement of the legal rule at the beginning of part three where the supreme court follows the statutory definition and i think the key here but usually as you know when we're interpretation decisions of the highest court of a of a jurisdiction we give a lot more credibility to dictum because we assume that the court was speaking beyond the case immediately before it to some kind of broader principle so we don't discount dictum in the same way that we might discount a routine panel opinion from this court understood your honor and i certainly understand that the texas supreme court's decisions offer significant guidance here my point is simply to say that dictum should not be overread as suggesting that there is an additional element that changes the definition of a safer alternative design from the definition that the legislature itself had adopted when you can see in the genie opinion itself that the court at the beginning of its legal analysis actually states precisely the legislative definition now this element about what they characterize as overall safety is not something new to texas law it didn't originate in geni that it was changing the elements of a design defect it never has said sense that you know well change the elements of a design defect jeannie did not say that these were additional elements of a design defect case and in fact it's not a surprise that the pattern jury charge has followed the legislative definition of safer alternative sign since you know while without ever and suggestion that it varied in any way from the apple goal statement by the texas supreme court i think it's significant that even today after jeannie the pattern jury charge has not been amended and in fact the pattern jury charges quotes from cheney in support of it statement of the safer alternative just a matter of it certainly is not a court approved process i would point out that in the ledesma decision itself to which counsel alluded just as well it in writing the opinion for the court said we very rarely disapprove texas pattern submissions and in law does not the court made a specific point to say the texas pattern jury charge on manufacturing defect is wrong the definition of producing cause is wrong and we ordered that charge be changed for trials in texas courts the court didn't do anything like that in jena but that wasn't an issue it wasn't but your honor i think that the point is that if the court had believed the cases needed to be submitted differently it would have said so remember the g d was itself submitted under the texas pattern jury charge definition of safer alternative design and the court regarded its jurisprudence about safer alternative to sign as enforcing and informing its analysis of the sufficiency of the evidence but not that it was an additional element and the point that i would make to the court is this is a question of jury instructions over which the district judge has discretion and unless you believe there is a substantial and any radical doubt that the jury has been misled the district judge has discretion i think that a federal district judge must have discretion to follow the texas pattern jury charge when it has never been questioned by any texas court unless there is a definitive statement from the texas supreme court that that is no longer texas law and i think cheney is anything but a defendant of statement on that point let me also address i think one of the reasons why textron is over reading this instruction it is that the p j c instruction itself fairly covers the argument that they want to make they had the opportunity to make it remember that when an instruction is refused the question for this court is whether the issue was substantially covered by the instructions that were given and here following a pattern jury charge and the legislative definition the district court instructed the jury that an alternative design could not substantially impair the products utility now courts have repeatedly recognized that arguments about whether an alternative design would be unsafe go to the question of impairment of a product's utility this court recognized that connection smith decision in two thousand and one and it recognized that again in its hodges decision in two thousand and six whether an alternative design would impose different risks is part of the analysis of whether that design substantially impairs the utility of the product that is in the pattern jury charge instruction that instruction was given to the jury counsel was able to argue that instruction and so i think that this is exactly the kind of situation where this court has repeatedly held a litigant is not entitled to its preferred instruction even if it's a correct statement of the law i think that in this respect the boma rito decision from the fifth circuit is attractive because that's a case where the appellate argued it was entitled to an additional instruction that was a correct statement of the law and the court said citing its long line of precedent you're not entitled to every legally correct charge you're only entitle to a fair charge and the district judge said implicitly included within the instructions that were submitted and that was within his discretion i think that's exactly the same in this case last point i'll make on this is that when there is a complaint about refusal to instruct the jury it is not enough to show an abuse of discretion which i submit textron cannot show in this context there must also be a showing that the defense was substantially impaired and there was no substantial impairment here for two distinct reasons the first is as i've textron had the ability to make this argument under the instructions as they were given and it made the argument if you look at the record at pages one six three three four and one six three three seven to three eight you will s that defense counsel in closing argument makes exactly the argument that you're hearing today from the podium exactly the argument that he had the ability to make under the instructions about substantial impairment of utility when he presented his case to you he argued and i wrote it down that there are tradeoffs and pros and cons that's about impairing the utility that's about weighing the risk versus the utility of a product that's not some unique overall safety consideration but create issues for a different teacher those are different things to me at least there may be some overlap but there's i understand there's are somewhat different i understand the intuition but in fact if you look at the cases applying the risk utility test recall that within the common law risk utility test one of the factors that common law to be weighed is always whether there was an alternative that would have minimized this risk without increasing other risks adversely what the texas legislature did when it adopted its statute on safer alternative design was to say that proof is necessary not just one fact well i have gone back i think we had all this debate in ford motor company years ago and it i mean that truth is that the law is substantially involved evolved particularly on the jury instructions to the jury i mean what used to be given to the jury in texas was i thought facially inadequate to develop any of these argument context of the texas practice remember that the legislature has evolved the submission on design defect the supreme court has never changed the design defect instruction it has simply recognized the legislature dictated an additional definition of safer alternative design element years ago was a very very truncated jury question you're one of the the difference now in the pattern instruction is really only the addition of the legislatively dictated definition of safer alternative design and the requirement that it be shown but what the texas supreme court might decide is appropriate for submission a texas trial is not the question in a federal diversity case where a federal district judge has discretion to instruct the jury the last point i was going to make though was about substantial impairment because counsel argued that there weren't safety concerns with respect to these alternative designs i submit he had the chance to make those arguments to the jury under these instructions he was not harmed but it's important to recognize these were not even serious safety concerns these are at best maintenance or utility concerns the argument about removing the linkage creating wear and tear on the brakes now remember that's not a very serious argument that's not something they even put in the best protection letter when they were recommending precisely this fix and the evidence showed there wouldn't be wear and tear on the brakes but even if you credit it that's an argument about maintenance costs on the vehicle that's not an argument about a risk of equal or greater magnitude with respect to the o p s which they argue there would be backfiring he said i quote the negatives outweigh the positives that's a risk utility balancing argument squarely within the language of the p j c instruction that's not an argument practical context at best it is an inconvenience and a matter of utility the final point that i would make is they make this argument about tripping hazards with the pedal guards they themselves offer the pedal guards as one of their options court let's begin with that last part on where they're not getting that instruction safer alternative design on overall safety impaired tech strong defense a trial it most certainly did because textron could not argue to the jury that under texas law a plaintiffs is required to prove as part of their safer alternative design the existence of a design that would not have been less safe in other circumstances and increased the risk to other users because both  texas supreme court this court and casey versus toyota have said it's not sufficient that the alternative design would have reduced or prevented the harm suffered by the plaintiff if it would have also entered deuced into the product other dangers of equal or greater magnitude the charge the jury received in this case they just had to find the answer yes to question number one they just had to find existence of any alternative zein they would have prevented  any consideration whatsoever of any equal or greater harm in genie industry the court very specifically says a plaintive must have presented evidence this is pretty clear must have presented evidence and then the court says number one it what they have to present number two number three number four they lay it out as elements and that was the objection to the court's charge this is an essential element it should have gone to the jury the jury should have received that instruction ultimately after the trial and after the evidence was put on by textron of the trade offs and safety with the different designs it in making any difference given the court's instructions to the jury because that wasn't consideration at all they just had to find a design that would prevent it mrs nestor's injuries turning to the issue on whether or not it was economically feasible to use this handbrake the argument being it's seven dollars for a switch well that's the switch that goes into the end of the handbrake and yes it costs seven dollars but this court in the casey vs toyotas case held that to  economic feasibility the plaintive must introduce proof of the cost of incorporating this technology and that cost is moving a hydraulic brake over to a mechanical braking system and there's no evidence on that now there was evidence on this other car that's the problem about trying to put it completely different braking system into the existing system no one knew how to do it and hadn't been done now if you want to jettison the mechanical system lunesta longer the nestors cart that's the bigger car with a more robust braking system goes at the higher speeds and that the cost of doing that was never introduced and that was necessary that's the cost of incorporating the technology what would you say to s t four eighty the e s s t four eighty is a different model vehicle utility cart it has hydraulic brakes it has a higher speed it is a more robust vehicle so when you're referring to how much does it cost the record does not reflect how much the s g for reflects the record reflects that the higher bigger carts with hydraulic brakes cost between thirteen and fourteen thousand dollars the last issue is the first one i believe the council address is worth discussing and that's the lynchpin here really goes all the way back to this walthers opinion and that seems to be where the argument is things took a different path we followed the ball in principle bold in principle  principle and then all a sudden griffin came out and there was this discussion walters well if you read the most read the opinion on rehearing and the walters case and this is where it becomes very clear what happened because it's going to quote this because it's worthwhile it's isn't in the end can your rehearing this court recently held reversing a number of earlier cases that a jury verdict may be sustained even though not all decisions all the theories on reaching its conclusion jurors are well equipped analyze the evidence and reach a decision despite the availability of factual unsupported theory in the jury instructions our discussion of griffin borrowed this principle and nothing more