* Pursuant to Local Rule 47.5, the Court has deter mined that

this opinion should not be published and is not precedent except

under the limited circumstances set forth in Local Rule 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

___________________

No. 95-30644

Summary Calendar

JEANETTE DODGE; JENNIFER DODGE,

Plaintiffs-Appellants,

versus

AMERICAN HONDA MOTOR COMPANY, INC.,

Defendant-Appellee.

________________________________________________

Appeal from the United States District Court for the

Western District of Louisiana

(CA-93-256)

________________________________________________

August 27, 1996

Before GARWOOD, HIGGINBOTHAM and STEWART, Circuit Judges. *

GARWOOD, Circuit Judge:

Plaintiff-appellant Jeanette Dodge, individually and on behalf

of her minor child, Jennifer Dodge, filed a products liability

action in Louisiana state court naming American Honda Motor

Company, Inc., Honda of North America, Inc., Honda Motor Company,

Ltd., Big River Sales, Inc., d/b/a Big Red Honda, and the State of

Louisiana——through the Department of Wildlife and Fisheries——as

defendants. In this action, plaintiffs-appellants (plaintiffs)2

alleged that the four-wheel all-terrain vehicle (ATV) which Ricky

Dodge was riding at the time of his fatal accident was

“unreasonably dangerous” under the Louisiana Products Liability Act

(LPLA), both in design and because the defendants failed to provide

adequate warnings. Following removal to the district court below

and the dismissal of the State of Louisiana and Honda North

America, Inc., this action was tried before a jury, and a unanimous

verdict was returned in favor of the defendants. On appeal,

plaintiffs contend that the defendants entered into a stipulation

during a sidebar conference at tr ial in which the defendants

admitted that the 1986 Honda TRX350 ATV ridden by decedent was

“unreasonably dangerous” under the LPLA. Therefore, plaintiffs

argue that the district court erred when it denied plaintiffs’

motion for judgment as a matter of law with respect to plaintiffs’

claim under the LPLA that the design of the TRX350 was

“unreasonably dangerous.” We affirm the judgment of the district

court.

Facts and Proceedings Below

On the evening of January 20, 1992, Ricky Dodge was crossing

a drainage ditch with steep embankments when the 1986 Honda TRX350

ATV he was riding flipped over backwards and struck him. Dodge

sustained extensive head injuries as a result of this accident, and

he died sometime during the night of January 20th. His body was

not found until the following day.1 These two theories of liability are codified in the LPLA,

La.Rev.Stat.Ann. §§ 9:2800.56, 9:2800.57. However, as the

plaintiffs have abandoned on appeal (by presenting no argument as

to any claim of error respecting) their claim that the TRX350 was

“unreasonably dangerous” because of inadequ ate warning, we will

limit our review to the plaintiffs’ claim that the ATV was

“unreasonably dangerous” in design, pursuant to section 9:2800.56.

2 After removal to the district court below, the State of

Louis iana, through the Department of Wildlife and Fisheries, was

d ismissed as a defendant (shortly thereafter, the State of

Louisiana, through the Office of Risk Management, Division of

3 At the time of this accident, Dodge, an enforceme nt officer

for the Louisiana Department of Wildl ife and Fisheries, was

investigating a report of illegal deer hunting activity. The ATV

in question was Dodge’s property, and he was operating it without

his headlight illuminated and without a helmet. Dodge had owned

and operated the ATV for six years prior to his accident, during

which time he had frequently used the ATV within the scope of his

employment as an enforcement officer.

On January 1, 1993, Jeanette Dodge, individually and on behalf

of her minor child, Jennifer Dodge, filed this products liability

action in the 12t h Judicial Court, Parish of Avoyelles, in

Louisia na alleging that Dodge’s 1986 Honda TRX350 (TRX350) was

“unreasonably dangerous” under the Louisiana Products Liability Act

(LPLA), both in design and because of inadequ ate warning. 1

Plaintiffs named as defendants American Honda Motor Company, Inc.,

Honda of North America, Inc., Honda Motor Company, Ltd., Big River

Sales, Inc., d/b/a Big Red Honda and the State of Louisiana,

through the Department of Wildlife and Fisheries. 2Administration, Office of the Governor, intervened in the lawsuit);

add itionally, Honda North America, Inc. was dismissed as a

d efendant; no complaint is made on appeal respecting the s e

dismissals.

4 The case was tried before a jury in April of 1995. During

trial, a side bar discussion occurred in which counsel for the

defendants stipulated to certain facts in the presence of opposing

counsel and the judge. Citing this stipulation, plaintiffs moved

for judgment as a matter of law with re spect to their allegation

that the TRX350 was “unreasonably dangerous” under the LPLA. The

district court denied this motion, and the jury rendered a

unanimous verdict in favor of the defendants.

Plaintiffs a ppeal, seeking reversal of the district court’s

judgment and a new trial. Moreover, plaintiffs ask this Court to

order the trial court on remand to enter judgment that the TRX3350

was “unreasonably dangerous” in design, leaving only the questions

of causation and damages for the jury on retrial.

Discussion

In considering whether there was sufficient evidence to submit

a case to the jury in the face of a motion brought pursuant to Rule

5 0(a), we view all of the evidence in the light and with all

reasonable inferences most favorable to the non-movant. S ee Turner

v. Purina Mills

, Inc. 989 F.2d 1419, 1421 (5th Cir. 1993) (citing

Boeing Company v. Shipman

, 411 F.2d 365, 374 (5th Cir. 1969)). “A

directed verdict is proper only if the evidence points ‘so strongly5

and overwhelmingly in favor of one party’ that a reasonable trier

of fact could not arrive at a contrary verdict.” Id.

In the present case, it is the plaintiffs’ contention that the

def endants effectively stipulated at trial that the TRX350 which

Ricky Dodge was riding at the time of his fatal a ccident was

“unreasonably dangerous” under the LPLA; accordingly, plaintiffs

maintain that the district court should have granted their motion

for judgment as a matter of law with respect to this issue, leaving

for the jury’s consideration only the issues of causation and

damages. We hold that the record does not support the plaintiffs’

contention.

In order to prevail on their claim that the TRX350 was

“unreasonably dangerous” in design, plaintiffs must have

demonstrated that:

“[A]t the time the product le ft its manufacturer’s

control:

(1) There existed an alternative design for the

product that was capable of preventing the claimant’s

damage; and

(2) The likelihood that the product’s design would

cause the claimant’s damage and the gravity of that

da m age outweighed the burden on the manufacturer of

adopting such alternative design and the adverse effect,

if any, of such alternative design on the utility of the

product. An adequate warning about a product shall be

c onsidered in evaluating the likelihood of damage wh e n

the manufacturer has used reasonable care to provide the

adequate warning to users and handlers of the product.”

La.Rev.Stat.Ann. § 9:2800.56.

Plaintiffs contend that, during a sidebar discussion involving3 In their reply brief to t his Court, plaintiffs extend their

reading of this stipulation, asserting that the defendants admitted

that plaintiffs had identified “not just one but several

alternative designs.”

4 We further note that evidence was adduced at trial by the

defendants regarding both of these elements of section 9:2800.56.

First, the defendants’ expert witness, Dr. Graeme Fowler, utilized

a video tape to demonstrate to the jury that the ditch where Ricky

Dodge’s accident occurred could be safely negotiated on a TRX350.

Second, Fowler testified th at the alternative design advanced by

the plaintiffs w as not a four-wheel drive design, and even if it

were, its capabilities would be less than those of the TRX350;

Fowler generally testified that utility of the TRX350 would be

compromised if the plaintiffs’ alternative design were implemented.

6 counsel and the trial judge, counsel for the defendants stipulated

to certain facts: (1) the defendants admitted that plaintiffs had

identified a feasible, sa fer alternative design “capable of

preventing Ricky Dodge’s death”; 3 and (2) the defendants agreed

that this alternative design “would not have cost a nickel to

adopt.” We note that, even if we assume a rguendo that the

plaintiffs’ characterization of the alleged stipulations is

accurate, this characterization omits any reference to the

necessary elements of section 9:2800.56 addressing “the likelihood

that the product’s design would cause the claimant’s damage” and

“the adverse effect, if any, of such alternative design on the

utility of th e product.” 4 Therefore, in light of the evidence

presented at trial, even if we were to embrace the plaintiffs’

above c haracterization of the sidebar discussion, we could not

conclude that plaintiffs were entitled to a directed verdict that

the TRX350's design was “unreasonably dangerous” under section5 This sidebar discussion transpired when plaintiffs’ counsel

attempted to introduce into evidence an exhibit which demonstrated

a particular warning sign affixed to the American-made Polaris ATV.

Anticipating defense counsel’s objection to this exhibit in light

of the court’s pre-trial consideration of this evi dence,

plaintiffs’ counsel asked to approach the bench.

7 9:2800.56.

Furthermore, we find no support for these characterizations by

the plaintiffs of the stipulations entered into by counsel for the

d efendants. The sidebar discussion in question consisted of the

following exchange, occurring during the direct examination of the

plaintiffs’ expert witness, Dr. David Renfroe 5 :

“Q: All right. Now, do you know whether in fact there

are all-terrain vehi cles sold which have a label which

specifically do just that and say don’t go up over hills

that exceed twenty-five degrees?

A: Yes, there are some that have that, yes.

Q: I n fact, is it not the American manufacturer of

ATV’s, the Polaris,——

A: It is.

Q: ——that gives just that instruction?

A: It is, it does.

Mr. Koch [plaintiffs’ counsel]: One second.

Judge, there is an objection to the next item

I would like to show the witness.

The Court: Okay.

[Counsel both approached the bench at this point.]

The Court: W ait a minute, he is going to make his

objection.

Mr. Koch: Okay, go ahead.8

Mr. Duplass [defense counsel]: This was sustained,

you did this on the telephone conference, the Polaris 1,

this is a different vehicle, a different warning——

Mr. Koch: Wait a minute, let me address that.

N umber one, there was no motion in limine about this,

Judge; number two, what we are talking about is the area

of feasibility, Judge. This is another four-wheel allterrain vehicle that is made by a different manufacturer,

t hey have a specific one point that talks about never

operate the ATV upper limits, that is grades twenty-five

d egrees. Now, for that reason, this is important, if

nothing else, even if this witness doesn’t comment on it

I ought to be allowed to authenticate it through this

witness because remember we don’t have warning experts in

this case, so I’m not——I can’t do it through anybody, you

have to have somebody to authenticate it.

The Court: But the feasibility for doing this has

never been contested.

Mr. Koch: If they will stipulate that this is a

feasible——that it would be feas ible, as that term is

defined in the Products Liability Act to do this, then I

don’t have problems.

The Court: They can always put a less vital or

vibrant engine, if you will, and they can always put in

different instructions, and that has never been suggested

as a defense.

Mr. Koch: All right, Judge, I just want to make sure

t hat we are clear on that because as I, in reading the

LPLA, it is my burden to show that there is an

a lternative, okay, and I have identified something an d

this is——limiting use is an alternative and that the

burden of that alternative, the burden of adopting that

alternative is outweighed by the benefit of adopting that

alternative.

The Court: You have already pointed it out, it wasn’t

going to cost anything.

Mr. Koch: Okay. Well, then my point is——

The Court: So that is a given.

Mr. Koch: If Honda is not contesting that, then I’m

——9

The Court: Have you contested that?

Mr. Duplass: No, Judge, we haven’t.

Mr. Koch: No, not contesting it in this case, Judge,

let me make sure

——

The Court: There is nothing to dispute.

Mr. Koch: Okay, fine.

[At this point, proceedings resumed before the jury.]”

In sum, then, it appears that counsel for the defendants

entered into the following stipulation as a result of this sidebar

exchange: “limiting use is an alternative and that the burden of

that alternative, t he burden of adopting that alternative is

outweighed by the benefit of adopting that alternative.” It is

less clear what the parties and the court understood the phrase

“ limiting use” to encompass; however, even if we interpret that

phrase broadly, in context it could refer to no m ore than the

feasible alternatives of limiting the use of the TRX350 by affixing

additional warnings or installing a “less vital or vibrant engine.”

Furthermore, it is unclear what meaning the parties agreed to

assign the phrase, “the benefit of adopting that alternative.”

Even though plaintiffs’ counsel ref ers to the LPLA in connection

with this phrase, it is a huge stretch to read into the defendants’

implicit acknowledgment of this phrase a stipulation that the

LPLA’s requirement in section 9:2 800.56(1)——that “the product []

was capable of preventing the claimant’s damage”——was established6 While it is undiscernible what “benefit of adopting [the

plaintiffs’ proposed] alternative [design]” the plaintiff was

referring to in this sidebar discussion, there is simply no support

for reading into the defendants’ failure to contest this ambiguous

reference a stipulation that one or both of the above requirements

of section 9:2800.56 was satisfied. In fact, a more tenable

reading of this final exchange at sidebar is that the defendants

conceded only that the plainti ffs’ proposed alternative design

“wasn’t going to cost anything”, and we are reluctant to impute

10 in the instant case. As we noted in R ice v. Glad Hands, Inc., 750

F.2d 434 (5th Cir. 1985), “A stipulation binds parties only to the

terms actually

agreed upon.” Id. at 438 (emphasis added).

Moreover, even if we consider the court’s observation, which

we impute in general terms to the defendants, that the plaintiffs’

pro posed alternative design “wasn’t going to cost anything” to

adopt, there is no support for the suggestion that this stipulation

was intended to satisfy——in the context of section

9:2800.56(2)——the requirement that “[t]he likelihood that the

product’s design would cause the claimant’s damage and the gravity

of that damage outweigh[] the burden on the manufacturer of

adopting such alternative design.” It is neither clear nor even

likely that the district court was advocating——and the defendants

implicitly ackno wledging——that there would literally be n o cost

associated with implementation of the plaintiffs’ proposed design

change; and, if “the likelihood that the [TRX350's] design would

cause [Ricky Dodge’s accident]” were found to be sufficiently low,

then this portion of section 9:2800.56(2) would not be satisfied in

the present case. 6 Therefore, interpreting this sidebar discussioneven this statement to the defendants as it is unclear whether the

defendants agreed to be bound by a literal construction of the term

——used by the court——“anything.”

11 even in the light and with all reasonable inferences most favorable

t o the plaintiffs, it appears that the defendants’ stipulation

stemming from this discussion amounted to an agreement that there

existed a feasible alternative design for the TRX350, and that the

cost of implementing this design change would be nominal.

The parti es revisited the substance of this stipulation on

several occasions during trial, but there is nothing which would

compel our departure from the above a nalysis of the stipulation.

For instance, when counsel for the defendants was cross-examining

Dr. Renfroe regarding “alternate feasible designs”, plaintiffs’

counsel objected and the following exchange (again, at sidebar)

ensued:

“The Court: We talked yesterday about making the motor

less vit al, or vibrant I guess, and using instructions

that would clearly indicate that if you knew the grade it

should be x rather than y. Now, he said those two things

yesterday. He can ask him about the two things he said

yesterday.

Mr. Koch: Oh, I understand, I’m not complaining

about that.

The Court: And if he didn’t have any alternate in his

deposition he can ask him that——

Mr. Duplass: He did not, Judge.

Mr. Koch: My only point I was trying to make is that

we got into a discussion issue about alternative designs

and things, and Mr. Duplass’ statement was that they are

not contesting that in this case——12

Mr. Duplass: We are not contesting feasibility

, but he

denied——” (emphasis added).

Plaintiffs correctly observe that this exchange reenforces

their argument that a stipulation was entered into by the

defendants concerning the feasibility of alternative designs.

However, plaintiffs also cite this exchange in s upport of their

broader assertion that this stipulation constituted an admission on

the defendants’ part that:

“[t]he likelihood that the product’s design would cause

the claimant’s damage and th e gravity of that damage

outweighed the burden on the manufacturer of adopting

such alternative design and the adverse effect, if any,

of such alternative des ign on the utility of the

product.”

There is no support for this broader assertion.

Similarly, plaintiffs direct this Court’s attention to another

discussion concerning the defendants’ stipulation:

“Q: Okay. And if you decrease the torque, if you lessen

the torque on a vehicle and lessen the available torque,

it will significantly adversely affect the useability of

the vehicle, does it not?

Mr. Koch: Judge, sorry , I apologize, but I really

have to approach again.

The Court: I’m getting a little tired of approaching,

this man is under cross examination.

Mr. Koch: Very well. I apologize for interrupting.

A: Where were we? I’m sorry.

Q: The question was simple,——

Mr. Koch: Judge, the objection is that Mr. Duplass

has agreed where feasibility is not an issue.7 Presumably, the district court’s finding of a non-issue in

this context stems from the defendants’ stipulation.

13 The Court: Feasibility is not at issue here because

he has said already that you could build a machine with

less motor , you could build a machine with no motor for

that matter, and you could give instructions that would

limit its use to very placid surroundings, like he

referred to, a golf course or I think he said a back yard

or something along that line. So it’s not a question——

Mr. Duplass: It’s not feasibility, Your Honor, that’s

right. It’s a simple question, what happens if you

decrease the torque and the utility ——you know, weighing

t he utility versus what you do does, I asked him

specifically that question.

Mr. Koch: And, Judge, that’s specifically what we

addressed yesterday, that that was not an issue in this

case. I specifically talked about this benefit versus

torque thing and I’m told it’s not at issue, and now Mr.

Duplass wants to start asking questi ons about it and I

object.

The Court: I think we can lea ve that aside because

it’s not an issue.

Mr. Koch: Thank you.

Mr. Duplass: If it’s not an issue, that’s fine, Judge.”

(Emphasis added).

It is difficult to identify precisely what the district court

is characterizing as “n ot an issue” here. 7 The court was

apparently referring to “this benefit versus torque thing”

championed by plaintiffs’ counsel, and plaintiffs’ counsel was in

turn responding to opposing counsel’s characterization that, “It’s

a simple question, what happens if you decrease the torque and the

utility——you know, weighing the utility versus what you do does.”

And, while we are again left with no express guidance as to what14

“benefit” the plaintiffs were contemplating, the testimony

surrounding this sidebar discussion sugge sts that the plaintiffs

were advocating a rough equation, based on the LPLA, in which

increased (available) torqu e is necessarily associated with an

increased potential for harm and decrea sed (available) torque is

correspondingly associated with less potential for harm. However,

considering the court’s repeated association of “less motor” (or

“ no motor”) with the issue of feasibility——specifically, the

feasibility of installing a smaller motor in the TRX350——it seems

likely that the court was referring to the issue of feasibility

when it stated that “it’s not an is sue”, and that the defendants

took the same view when they acquiesced in this finding. At most,

then, we view the defendants’ acquiescence as an agreement that the

stipulation established the feasi bility of an alternative design

for the TRX350 in which a smaller engine was utilized, and perhaps

also a general acknowledgment that some measure of “safety” benefit

could accompany such a design change.

Nevertheless, these sidebar skirmishes regarding the

defendants’ stipulation fail to d emonstrate that the defendants

stipulated to all of the requirements of section 9:2800:56. In

view of defendants’ contention, and e vidence, that Ricky Dodge

could have safely negotiated the fateful ditch on his TRX350, we

cannot conclude that the defendants’ implicit acknowledgment of

some “safety” benefit from a smaller engine constitutes a15

stipulation that this alternative design “was capable of preventing

the claimant’s damage”; according to defe ndants, the “claimant’s

damage” in this case resulted from human error. There is simply no

support for a reading of the defendants’ stipulation to include a

concession that Ricky Dodge’s accident resulted from the

availability of excessive tor que. Moreover, even under this

expansive reading of the defendants’ stipulation, we find that the

defendants never reached any agreement regarding “[t]he likelihood

t hat the [TRX350's] design would cause the claimant’s damage. ”

Finally , it is likewise clear that nothing in the defendants’

stipulation touched on “the adverse effect, if any, of such

alterna tive design on the utility of the product,” a hotly

contested issue at trial. Therefore, we hold that the district

court did not err in finding that the defendants never entered into

a stipulation that the TRX350 was “unreasonably dangerous” in

design, pursuant to section 9:2800:56, and that, accordingly, the

district court did not err in denying the plaintiffs’ motion for

judgment as a matter of law with respect to their allegation that

the TRX350 had an “unreasonably dangerous” design under the LPLA.

See United States v. McKinney

, 758 F.2d 1036, 1048 (5th Cir. 1985)

(we review for clear error a district court’s finding that there

was no agreement to enter into a particular stipulation).

Finally, we note that there is no merit to the plaintiffs’

present contention that they relied on this expansive view of the16

stipulation and the refore failed to adduce certain evidence at

trial, and that the district court’s denial of their motion for

judgment as a matter of law accordingly permitted the jury to

decide the issue concerning the allegedly “unreasonably dangerous”

design without the benefit of plaintiffs’ “full proof.” Our review

of the re cord demonstrates that, subsequent to the sidebar

discussion giving rise to the stipulation, plaintiffs quest ioned

t heir own expert witness extensively on subjects relevant to

section 9:2800.56, including (1) the impact of an alternative

design on (reducing) the likelihood of Ricky Dodge’s accident, and

(2) the weighing of the potential “benefit” inherent in the

alternative design versus the burden of adopting that design.

Additionally, plaintiffs questioned the defendants’ expert

witnesses concerning the comparative utility of the TRX350 and the

plaintiffs’ proposed “alternative design.”

In support of this contention, plaintiffs identify no specific

evidence which they abstained from presenting based on their

reliance on the stipulation, and specify only one instance in which

they were allegedly prevented from adducing evidence based on the

defendants’ stipulation. With regard to the latter instance,

plaintiffs maintain that counsel for the defendants raised an

objection——grounded on the defendants’ own stipulation——in response

to the plaintiffs’ questioning of a witness regarding the

feasi bility and relative utility of a four-wheel drive ATV which

had lower torque than the TRX350. However, the testimony and17

objection in question provide no support for this contention by the

plaintiffs:

“Q: All right. Now, in 1986, sir, the TRX350 was the

largest engine size sold by American Honda; is that

accurate?

A: Yes.

Q: And subsequent to t h at time American Honda has

marketed four-wheel drive 300 c.c. engines, hasn’t it?

A: They have.

Mr. Williams: Objection, Your Honor, it is subsequent to

that time, you limited us to——

Mr. Koch: I think I have been pretty——

The Court: I think you could try a little harder.

Mr. Koch: I’m almost done.

The Court: I mean I’m going to sustain the objection.

Mr. Koch: That’s fine, Judge. One moment and I may

actually be able to stop.

The Court: Good.”

While it is not clear from this discussion what (time) “limitation”

the parties and the court were referring to, it i s evident t hat

nowhere in the defendants’ stipulation concerning the feasibility

and cost of an alternative design to the TRX350 did the defendants’

agree to restrict their evidence to a limited time frame. Besides,

th e objection above apparently refers to a limitation applied by

the court against both the defendants and the plaintiffs.

Therefore, the limitation at i ssue in the above exchange was

distinct from the defendants’ stipulation concerning the18

feasibili ty and cost of an alternative ATV design. In sum, the

plaintiffs were mistaken in their belief that the defendants had

stipulated to the T RX350's “unreasonably dangerous” design under

the LPLA, bu t even so, this mistaken belief did not prevent the

plaintiffs from presenting their “full proof” on this issue.

Conclusion

The judgment of the district court is accordingly

AFFIRMED.