24King, et al. v. Ford Motor Co., et al.No. 98-5960load limiters and belt loads in the 1992 Hyundai Excel. Fordhad disclosed that its experts would rebut plaintiffs’ profferedtestimony, and Ford claimed that it was unaware prior to trialas to the nature of Syson’s testimony.The district court squarely rejected this argument, findingthat plaintiffs had disclosed the nature of Syson’s testimonyprior to trial. In his report, Syson stated that “a force limiterin the torso belt” was an option available to Ford to improveits restraint system design. At his deposition, Syson statedthat he would provide exemplars of load limiters during histestimony. A year prior to trial, plaintiffs informed Ford thatone of those exemplars would be a load limiter used in theHyundai Excel. Despite these disclosures, the district courtfound, Ford never divulged prior to trial that it would call anywitnesses to testify about load limiters in the Hyundai Excel.Ford does not address the above facts in its brief before thiscourt nor does it provide any explanation as to why its failureto disclose was justified. It has not demonstrated that thedistrict court clearly erred.Ford next argues that it would simply be unfair to excludeits proffered testimony. We conclude that this is not the case.Although it was attempting to present rebuttal testimony,Ford’s unexcused failure to disclose that its experts wouldtestify regarding Hyundai Excel load limiters did not allowplaintiffs the opportunity to prepare properly for thesewitnesses. Furthermore, the district court allowed one Fordwitness, Michelle Vogler, to testify about the 1992 HyundaiExcel, stating in particular that the Escort and the Excel hadthe same “chest loads.” The court thus did allow at least alimited response to Syson’s “surprise” testimony. Again,Ford has not demonstrated that the district court clearly erred.VIII.For the foregoing reasons, the judgment of the district courtisAFFIRMED.1RECOMMENDED FOR FULL-TEXT PUBLICATIONPursuant to Sixth Circuit Rule 206ELECTRONIC CITATION: 2000 FED App. 0137P (6th Cir.)File Name: 00a0137p.06UNITED STATES COURT OF APPEALSFOR THE SIXTH CIRCUIT_________________CHARLESKING, asAdministrator of the Estate ofPatti Ann King,Plaintiff- Appellee,AMANDASUEKING, by andthrough her next friendCharles King; ASSOCIATEDINSURANCECOMPANIES,InterveningPlaintiffs-Appellees,v.FORDMOTORCOMPANY;MAZDAMOTORCORPORATION,Defendants-Appellants.;>1No. 98-5960Appeal from the United States District Courtfor the Eastern District of Kentucky at London.No. 95-00117—Jennifer B. Coffman, District Judge.Argued: August 6, 1999Decided and Filed: April 19, 20002King, et al. v. Ford Motor Co., et al.No. 98-5960*The Honorable Algenon L. Marbley, United States District Judge forthe Southern District of Ohio, sitting by designation.Before: BATCHELDER and COLE, Circuit Judges;MARBLEY, District Judge.*_________________COUNSELARGUED:E. Duncan Getchell, Jr., MCGUIRE, WOODS,BATTLE & BOOTHE, Richmond, Virginia, for Appellants.Samuel E. Davies, Barbourville, Kentucky, for Appellees.ON BRIEF:E. Duncan Getchell, Jr., Rosewell Page, III,MCGUIRE, WOODS, BATTLE & BOOTHE, Richmond,Virginia, Bryan Todd Thompson, DINSMORE & SHOHL,London, Kentucky, for Appellants. Samuel E. Davies,Barbourville, Kentucky, for Appellees._________________OPINION_________________R. GUY COLE, JR., Circuit Judge. Charles King,administrator of the estate of Patti Ann King; Amanda King,the Kings’ daughter; and the Associated Insurance Companies(collectively “plaintiffs”), filed this suit against the FordMotor Company and Mazda Motor Corporation (collectively“Ford”). Plaintiffs alleged that the passenger restraint systemin the 1992 Ford Escort in which Patti Ann King was ridingon August 21, 1994 was defective, causing her death.Following a jury verdict in favor of the plaintiffs, Ford raisedseveral grounds for appeal. For the following reasons, weAFFIRMthe judgment of the district court.No. 98-5960King, et al. v. Ford Motor Co., et al.23instruction on alternative design.See Fulkerson, 812 S.W.2d at 123-24.In fact, Kentucky’s courts believe that this instruction may confuse juriesas to the issues at stake under this doctrine.See id.VII.Ford finally claims that it is entitled to a new trial becausethe district court erred by excluding portions of testimonyfrom two of Ford’s experts, Roger Maugh and GeoffGermane. Maugh would have testified that the 1992 Escortwas not defective because it did not use a load limiter in itsrestraint system, and Germane would have testified that beltloads in the 1992 Hyundai Excel, which employed a loadlimiter, were actually higher than the belt loads in the 1992Ford Escort. The testimony purportedly would havedemonstrated that load limiters were not feasible for the 1992Escort. The district court held that the experts’ opinions werenot admissible under Fed. R. Evid. 26 because Ford did not,within the allotted time window, disclose that the expertswould testify about these matters. This court reviews such aruling for abuse of discretion.See Pedigo v. UNUM Life Ins.Co., 145 F.3d 804, 807 (6th Cir. 1998).Fed. R. Evid. 26(a)(2)(B) provides, in part, that a party’sdisclosure regarding an expert witness must “contain acomplete statement of all opinions to be expressed and thebasis and reasons therefor.” Fed. R. Evid. 37(c)(1), in turn,provides that “[a] party that without substantial justificationfails to disclose information required by Rule 26(a) . . . shallnot, unless such failure is harmless, be permitted to use asevidence at a trial, at a hearing, or on a motion any witness orinformation not so disclosed.” Ford does not contend that,prior to trial, it disclosed that its experts would testify aboutload limiters in the Hyundai Excel; rather, it contends that ithad substantial justification for failing to disclose and that, inany event, it would be fundamentally unfair to disallow theproffered testimony. Ford claims that it was justified infailing to make the required disclosures under Rule 26because the testimony in question was merely offered to rebutthe “surprise” testimony of plaintiffs’ expert, Syson, regarding22King, et al. v. Ford Motor Co., et al.No. 98-59609The trial court was not required, as a matter of federal law, toinstruct on design defect. Although the appropriateness of theinstructions is reviewed under federal procedural standards, the substanceof the instructions to the jury should be based in state law.See PersianGalleries, Inc., 38 F.3d at 257. The Kentucky courts have clearly statedthat to fully expound the law on design defects, the jury need not hear anSince the time Kentucky adopted the doctrine of “strictliability” in products cases as stated in the Restatement,Second, Torts, § 402A, in the case ofDealer’s TransportCompany v. Battery Distributing Company, Ky., 402S.W.2d 441 (1966), the Kentucky practice has been tostate the liability issue in the terms of Restatement: Didthe defendant manufacture, sell or distribute the product“in a defective condition unreasonably dangerous to theuser . . . ?”. . .In Montgomery Elevator Co. v. McCullough, Ky., 676S.W.2d 776, 780-81 (1984), we stated:“Considerations such as feasibility of making a saferproduct, patency of the danger, warnings andinstructions, subsequent maintenance and repair,misuse, and the products’ inherently unsafecharacteristics, while they have a bearing on thequestion as to whether the product wasmanufactured ‘in a defective condition unreasonablydangerous,’ are all factors bearing on the principalquestion rather than separate legal questions.”A trial court is well advised to leave consideration ofthese evidentiary factors to the arguments of counselrather than attempting to frame them up in theinstructions on the ultimate questions. The languageused may be confusing or misleading.Id. The district court’s instruction in this case tracked thelanguage of the Restatement (Second) of Torts § 402A andthe instruction approved byFulkerson.It was thereforesufficient under Kentucky law, and we do not find that thedistrict court committed reversible error in giving thatinstruction.9No. 98-5960King, et al. v. Ford Motor Co., et al.31One of Ford’s experts described the knee bolster as “just a big padright down in the lower part of the instrument panel. And it was designedso that if you got in a frontal accident, the torso belt would hold the uppertorso back but the lower torso would slide forward until the knees hit thebolster and the bolster would, in effect, provide a mechanism forabsorbing energy in the lower torso. . . .”I.On August 21, 1994, Patti Ann King, Ginger Brockman,and Erica Brockman were in Ginger Brockman’s 1992 FordEscort, approaching McKee, Kentucky at about thirty tothirty-five miles per hour. King was in the front passenger’sseat, Ginger Brockman was driving, and Erica Brockman wasin the back seat. A pickup truck traveling in the oppositedirection, driven by sixteen-year-old Brian Coyle, unwiselyattempted to turn in front of Brockman’s car, into thedriveway of a Dairy Freeze restaurant. The front of the Escortclipped the truck, causing a Delta V, or change in velocity, inthe car on the order of twenty-seven miles per hour.The Escort employed a “passive” or “automatic belt”restraint system in its front seats. The system consisted of atwo-point motorized shoulder belt that automatically lockedin place when the occupant closed her door; a knee bolsterdesigned to restrain the lower torso;1and a manual lap belt.For a period of about six months, King had owned an EagleTalon with a similar system, and she was described as an“avid seatbelt user.” At the time of the accident, however,King was wearing only the automatic shoulder belt and notthe manual lap belt. She apparently had the lap belt on earlierin the trip, but after her party stopped at the Gray Hawk storeto buy a newspaper, she failed to re-engage it.King suffered massive injuries in the accident – severalfractured ribs and a fractured collar bone; lacerations to bothlungs; and a tear to the left auricle of her heart. Sheultimately died of a lack of oxygen to her brain as a result ofher heart and lung injuries. King’s estate alleged that herinjuries were the result of defects in the Escort’s restraint4King, et al. v. Ford Motor Co., et al.No. 98-59602Neither Ginger Brockman nor Brian Coyle were parties to thisaction. Their insurance companies settled the Kings’ claims against them.3The Safety Act was originally codified at 15 U.S.C. § 1381et seq.Congress recodified the act in 1994, “‘without substantive change’ to theunderlying provisions.”Geier v. American Honda Motor Co., 166 F.3d1236, 1237 n.2 (D.C. Cir.),cert. granted, 120 S. Ct. 33 (1999)..system and filed suit against Ford in the United States DistrictCourt for the Eastern District of Kentucky on April 14, 1995.2It asserted diversity jurisdiction and brought state-law claimsof negligence, strict liability, and breach of impliedwarranties. Associated Insurance Companies intervened toassert subrogation claims for medical expenses, and AmandaSue King, King’s daughter, intervened to assert loss ofconsortium claims.Before the case proceeded to trial, Ford filed a motion forpartial summary judgment, arguing that, to the extentplaintiffs asserted that the Escort was defective because itfailed to contain an air bag, those claims were preempted bythe National Traffic and Motor Vehicle Safety Act of 1966(“Safety Act”), now codified3at 49 U.S.C. § 30101et seq.,and regulations promulgated thereunder,see49 C.F.R.§ 571.208 (1999) (“Standard 208”). The district court grantedthis motion and plaintiffs’ remaining claims were tried beforea jury. At the close of plaintiffs’ proofs, Ford filed a motionfor judgment as a matter of law under Fed. R. Civ. P. 50,asserting that plaintiffs’ claims were preempted in theirentirety. The district court denied this motion. The case wentto the jury on two distinct theories: that the “automatic seatbelt restraint system was defective and unreasonablydangerous to the consumer” and that Ford failed to warnconsumers of the potential dangers associated with therestraint system. After first being sent back for furtherdeliberations after returning inconsistent answers tointerrogatories, the jury found Ford liable on both claims andNo. 98-5960King, et al. v. Ford Motor Co., et al.21see also Schrand, 1999 WL 540877, at *2 (defining duty as“the exercise of ordinary care to prevent foreseeable injuryfrom occurring to another person”). We therefore find thatthe district court did not abuse its discretion by failing to givethe requested instruction.B.Ford next contends that, with regard to plaintiffs’ designdefect claim, that the district court erred by failing to give aninstruction on alternate feasible designs – that is, aninstruction that the jury should determine whether there wasan alternate restraint-system design available at the time theEscort was manufactured and whether a reasonably prudentmanufacturer would have used this alternative. The court’sdesign-defect instruction was as follows:In order to recover under her [sic] design defect claim,the plaintiffs must establish two essential elements asfollows:First, that when the 1992 Ford Escorts left thepossession of the defendants, the design of the automaticseat belt restraint system was defective and unreasonablydangerous to the consumer.And second, that the unreasonably dangerous,defective condition of the machine was a substantialfactor in causing the injury and death of Patti King.As the term is used in this instruction, a design isdefective and unreasonably dangerous if it creates sucha risk of accidental injury to a prospective user that anordinarily prudent company engaged in the manufactureof similar products, being fully aware of the risk, wouldnot have put it on the market.InFord Motor Co. v. Fulkerson, 812 S.W.2d 119, 122-24(Ky. 1991), the Kentucky Supreme Court specificallyapproved for use in product liability actions the very type ofbare-bones design-defect instruction used by the district courtin this case. TheFulkersoncourt wrote:20King, et al. v. Ford Motor Co., et al.No. 98-5960the safety purpose for the belt.”SeeMiller’s Bottled Gas, Inc.v. Borg-Warner Corp., 56 F.3d 726, 736 (6th Cir. 1995)(“[T]rial court may refuse to instruct the jury on an issuewhen there has been insufficient evidence presented tosupport a jury finding on that issue.”);Laugesen v. AnacondaCo., 510 F.2d 307, 314 (6th Cir. 1975) (stating that trial courthad no obligation to instruct on a theory not pleaded by aparty and not supported by evidence);cf. Wagner v. CaseCorp., 33 F.3d 1253, 1258 (10th Cir. 1994) (approving therefusal to give a jury instruction, in a Colorado diversity case,where party requesting instruction offered “vague” evidenceto support its argument).Although Ford introduced evidence and argued as to King’sregular use of a seat belt, none of the evidence adduced byFord indicated that King was aware of the danger of potentialinjuries, or worsened injuries, from the use of the shoulderbelt alone.See Demaree v. Toyota Motor Corp., 37 F. Supp.2d 959, 967 (W.D. Ky. 1999) (applying Kentucky law andfinding no duty to warn because the plaintiff explicitlytestified that she knew of the danger of the car’s air bag). Norhad Ford pointed to any objective evidence that this dangerwas a matter of common knowledge.See Leonard v.Uniroyal, 765 F.2d 560, 564 (6th Cir. 1985).“A judgment may be reversed only if the instructions,viewed as a whole, were confusing, misleading, orprejudicial.”Beard v. Norwegian Caribbean Lines, 900 F.2d71, 72-73 (6th Cir. 1990). This was not the situation in thepresent case. We further note that the district court gave aninstruction stating that in order for the plaintiffs to recover ona failure-to-warn theory, Ford’s failure to provide an adequatewarning had to be a substantial factor in causing thedecedent’s injuries. Although this instruction goes tocausation rather than duty, it adequately conveys the intent ofFord’s requested instruction: if King had already been fullyapprized of the need to wear the lap belt – that is, she wasaware of the danger from not doing so – Ford’s failure towarn King obviously could not have played a substantialfactor in causing her death.See Leonard, 765 F.2d at 566 n.5;No. 98-5960King, et al. v. Ford Motor Co., et al.54The jury apportioned fault as follows: Ford, 65%; Brian Coyle,20%; Patti King, 10%; Ginger Brockman, 5%. The estate recovered$823,172.58, Amanda Sue King recovered $975,000.00, and AssociatedInsurance Cos. recovered $49,937.58.awarded damages in the amount of $1,848,109.84.4Fordrenewed its motion for judgment as a matter of law and fileda motion for a new trial, both to no avail. This timely appealfollowed.II.Ford first argues that plaintiffs’ claims are preempted byfederal law. This court generally reviews a district court’sdecision with regard to preemptionde novo.See GTEMobilnet v. Johnson, 111 F.3d 469, 475 (6th Cir. 1997).The Supremacy Clause of the United States Constitutionprovides that federal law “shall be the supreme Law of theLand . . . any Thing in the Constitution or Laws of and Stateto the Contrary notwithstanding.” U.S. Const. art. VI. Thus,as has been clear since the Supreme Court’s decision inM’Culloch v. Maryland, 17 U.S. 316 (1819), any state lawthat conflicts with federal law is “without effect.”Cipollonev. Ligget Group, Inc., 505 U.S. 504, 516 (1992) (citingMaryland v. Louisiana, 451 U.S. 725, 746 (1981)).In applying the Supremacy Clause, courts “start with theassumption that the historic police powers of the States [are]not to be superseded by [a] Federal Act unless that was theclear and manifest purpose of Congress.”Medtronic v. Lohr,518 U.S. 470, 485 (1996) (citingRice v. Santa Fe ElevatorCorp., 331 U.S. 218, 230 (1947)). Therefore, “‘[t]he purposeof Congress is the ultimate touchstone’ in every pre-emptioncase.”Id. (citingCipollone, 505 U.S. at 516). The SupremeCourt has stated that Congress may make its intent to preemptclear either expressly or implicitly.See Freightliner Corp. v.Myrick, 514 U.S. 280, 287 (1995). Implied preemption, inturn, takes two forms. “We have found implied conflictpre-emption where it is impossible for a private party to6King, et al. v. Ford Motor Co., et al.No. 98-5960comply with both state and federal requirements, or wherestate law stands as an obstacle to the accomplishment andexecution of the full purposes and objectives of Congress.”Id.(internal citations and quotations omitted). In summary, then,there are three types of preemption – express preemption,implied conflict preemption, and implied field preemption.Ford’s argument revolves around the Safety Act, andStandard 208 promulgated thereunder. The Safety Actauthorizes the Secretary of Transportation to promulgateFederal Motor Vehicle Safety Standards (“FMVSS”).See49U.S.C. § 30101. When an FMVSS is in effect, “a State or apolitical subdivision of a State may prescribe or continue ineffect a standard applicable to the same aspect of performanceof a motor vehicle or motor vehicle equipment only if thestandard is identical to the standard prescribed under thischapter.” 49 U.S.C. § 30103(b). However, the act alsocontains a savings clause, which provides that “[c]ompliancewith a motor vehicle safety standard prescribed under thischapter does not exempt a person from liability at commonlaw.” 49 U.S.C. § 30103(e).The Secretary’s Standard 208, promulgated pursuant to theSafety Act, requires passenger cars manufactured afterSeptember 1, 1989 but before September 1, 1993, like theEscort in this case, to comply with one of three front-seatoccupant crash-protection options: (1) a complete passiverestraint system; (2) a passive system (automatic seat belts orair bags) for frontal crash protection, manual belts for lateralcrashes and rollovers, and a warning system; or (3) manualfront seat belts with a warning system.See49 C.F.R.§ 571.208, S4.1.4-S4.1.4.2.2. Ford used option 2 -- anautomatic shoulder belt and knee bolster to protect againstfrontal collisions, a manual lap belt to protect against lateralcrashes and rollovers, and a warning system.Ford’s position is that implied conflict preemption appliesin this case. It argues that “[b]ecause federal policy [i.e. theSafety Act and Standard 208] affirmatively required that thesethree options be available to manufacturers, a state rule whichNo. 98-5960King, et al. v. Ford Motor Co., et al.19court characterized the requested instruction as a “legalstandard,” and, as such, not a necessary jury instruction. Thischaracterization is consistent with the Kentucky SupremeCourt’s indication that, under Kentucky tort law, the issue ofwhether a defendant has a duty to a plaintiff is generally aquestion of law to be resolved by the trial court.See Mullinsv. Commonwealth Life Ins. Co., 839 S.W.2d 245, 248 (Ky.1992) (“The question of duty presents an issue of law.”);Sheehan v. United Service Auto. Assoc., 913 S.W.2d 4, 6 (Ky.Ct. App. 1996);Schrand v. Grant, No. 1997-CA-001996-MR,1999 WL 540877, at *2 (Ky. Ct. App. July 2, 1999).In any event, Ford failed to present sufficient evidencewarranting such an instruction. Contrary to Ford’s suggestionon appeal, the absence of a duty to warn was not its theory ofthe case. Instead, Ford consistently argued that its warningswere adequate, a distinct issue from a lack of a duty to warn.For example, Ford did not plead a lack of a duty to warn in itsresponse to King’s complaint. Likewise, in openingarguments, Ford did not state that it would argue that it had noduty to warn. Rather, Ford told the jury, after stating that itswarnings were adequate, that it would show that King woreher seat belt and knew she ought to wear her seat belt,supportive evidence for its argument that it adequately warnedKing. Evidence in the case did in fact indicate that King wasan avid seat belt user, had previously worn the lap belt inBrockman’s Escort, and had briefly owned an Eagle Talonwith a restraint system similar to that in the 1992 Escort.Ford only raised the issue of a lack of a duty to warn when itmoved for a directed verdict on that basis, to which the trialcourt responded, correctly, “I don’t know of any testimony asto her knowledge of the danger of the product.”The jury instructions initially submitted to the court by Forddid not include one stating that Ford did not have a duty towarn of a known danger. It was only after the district courthad finalized the charge when Ford requested the addition ofan instruction with this language. In its closing, Ford arguedthat the court would instruct the jury that “there is a duty towarn a person of unknown danger” and that “King knew of18King, et al. v. Ford Motor Co., et al.No. 98-59608We recognize that two of our cases – one in unelaborated dicta andthe other unpublished – suggest that the federal district court is notrequiredto follow the Kentucky bare bones practice.See Robinson v.Ralph G. Smith, Inc., 735 F.2d 186, 192 n.9 (6th Cir. 1984);Whitescarverv. Wal-Mart Stores, Inc., No. 92-5197, 1992 WL 393172, at *3 (6th Cir.Dec. 29, 1992). Even if we were to consider either of these cases binding,a district court is still free to look to a state’s model jury instructions andother authority to insure it properly instructs the jury under substantivestate law.prejudicial”). Therefore, the district court had the option ofseeking guidance from Kentucky practice in formulating thejury instructions.8In fact, a federal court’s consideration ofa state’s jury instruction practice may insure that theinstructions correctly express state substantive law.SeeLaney, 901 F.2d at 1321;cf. Rhea v. Massey-Ferguson, Inc.,767 F.2d 266, 269 (6th Cir. 1985) (noting that in Michiganthe standard instructions must be given, and stating that “[t]hedistrict court had no duty to give the additional requestedinstructions if the standard instructions, viewed as a whole,fairly and accurately describe” state law). Finally, even if adistrict court errs by failing to give a requested instruction, wewill not reverse when the error is harmless.See United Statesv. Toney, 161 F.3d 404, 412-13 (6th Cir. 1998),cert. denied,526 U.S. 1045 (1999).A.Ford contends that the district court erred by failing to givean instruction stating that it had no duty to warn of knowndangers. Such an instruction would have been an accurategeneral statement of Kentucky law.See Hutt, 914 F.2d at 793(stating that under Kentucky law, “[t]here is no duty on thepart of a manufacturer to warn the user of a product when theuser is aware of the product’s danger”).The trial court rejected Ford’s request to add a juryinstruction providing that “the defendants had no duty to warnif Patti King knew of the lap belt and was aware of thereasons for wearing it.” In denying the request, the districtNo. 98-5960King, et al. v. Ford Motor Co., et al.7found civil liability for using one of the equipment optionsrather than another would be preempted.” State tort lawremoving one option would obviously be “an obstacle to theaccomplishment and execution of the full purposes andobjectives of Congress,” namely the objective thatmanufacturers have flexibility in choosing a restraint system.Hines v. Davidowitz, 312 U.S. 52, 67 (1941). Ford contendsthat plaintiffs’ suit would limit this flexibility, as the companycharacterizes plaintiffs’ suit as one claiming that two-point,automatic seatbelts with manual lap belts are inherentlydefective.SeeIrving v. Mazda Motor Corp., 136 F.3d 764,768-69 (11th Cir. 1998) (holding such a claim preempted).We agree with plaintiffs, however, that Ford hasmisconstrued their case. As plaintiffs note:In the case at bar . . . plaintiffs’ position was not that thedesign choice made by defendants for protecting againstfrontal collisions – an automatic shoulder belt and kneebolster – was inherently defective but that the specificdesign was defective due to failure to use load limitersand/or change the location of the knee bolster and/orchange the location of the belt anchor.Such a claim is not preempted by the Safety Act. TheFMVSS provide only the “minimum standard[s] for motorvehicle or motor vehicle equipment performance.” 49 U.S.C.§ 30102(a)(9). The Safety Act’s savings clause, which statesthat compliance with an FMVSS does not shield amanufacturer from liability at common law, contemplates thatmanufacturers may be held liable for failure to exceed theseminimum standards when their decisions were unreasonable.This is the essence of plaintiffs’ claims.We findPerry v. Mercedes Benz of North America, Inc.,957 F.2d 1257 (5th Cir. 1992), to be analogous to this case.There, plaintiff alleged that the air bag in her car had “anunreasonably dangerous ‘deceleration velocity deploymentthreshold’” despite the fact that it met the requirements ofStandard 208.Id. at 1260. In other words, plaintiff did notchallenge Mercedes’s decision to place an air bag in its cars,8King, et al. v. Ford Motor Co., et al.No. 98-5960but rather argued that the air bag should have been safer thanrequired by federal law. After finding that expresspreemption did not apply, the court held that implied conflictpreemption did not apply either. As an initial matter, thecourt found it “obvious” that there was no impossibility ofcomplying with both federal and state law – if state lawrequired a higher level of protection than federal law, asystem that complied with state requirements would satisfyfederal regulations a fortiori. The court also found that thediffering levels of protection did not create an obstacle to thefulfilment of federal objectives.Once the manufacturer chooses an option that includes anair bag system, Standard 208 S5-S6 merely set forthminimum performance requirements for that system. Toallow tort liability for the design of that system would notremove or require any particular choice, or otherwisefrustrate “flexibility” that the federal scheme provides.We recognize that the manufacturer who chooses to meetonly the bare minimum performance requirements willbe burdened with the potential for tort liability, but thisis the exact burden that Congress preserved in theSavings Clause, when it stated that “[c]ompliance withany Federal motor vehicle safety standard . . . does notexempt any person from any liability under commonlaw.” Congress sought to meet its goal of minimizingthe number of deaths and injuries caused by autoaccidents by setting forth minimum standards andleaving common law liability in place.Id. at 1265-66. The court thus held that plaintiff’s claim wasnot preempted.See id;see also Pokorny v. Ford Motor Co.,902 F.2d 1116, 1126 (3d Cir. 1990) (“Ford’s argument thatwe . . . should simply hold that all safety alternatives notincluded in Standard 208 are pre-empted does not persuadeus.”);Collazo-Santiago v. Toyota Motor Corp., 957 F. Supp.349, 353 (D.P.R.1997) (“[C]ompliance with performancecriteria does not immunize manufacturers from common lawliability arising from any defects in the production or designof their passive restraint systems.”);cf. Sours v. GeneralNo. 98-5960King, et al. v. Ford Motor Co., et al.17901 F.2d 1319, 1321 (6th Cir. 1990) (citingWilliams v. UnionCarbide Corp., 790 F.2d 552 (6th Cir. 1986)).“Kentucky follows the ‘bare-bones’ principle in providinginstructions.”McGuire v. Commonwealth of Kentucky, 885S.W.2d 931, 936 (Ky. 1994);see also DSG Corp. v.Anderson, 754 F.2d 678, 681-82 (6th Cir. 1985). That is, thejury instructions “should not contain an abundance of detail,but should provide only the bare bones of the question forjury determination. This skeleton may then be fleshed out bycounsel on closing argument.”Ball v. E.W. Scripps Co., 801S.W.2d 684, 691 (Ky. 1990) (citingRogers v. Kasdan, 612S.W.2d 133, 136 (Ky. 1981)). The Kentucky Supreme Courthas stated that:In conclusion, it may be well to mention that whenevercounsel feels that jurors might draw inferences that arenot warranted by the specific terminology of theinstructions, his opportunity to guard against it comes inthe closing argument. If instructions are to be keptconcise and to the point, as they should be, theirsupplementation, elaboration and detailed explanationfall within the realm of advocacy. Contrary to thepractice in some jurisdictions, where the trial judgecomments at length to the jury on the law of the case, thetraditional objective of our form of instructions is toconfine the judge’s function to the bare essentials and letcounsel see to it that the jury clearly understands whatthe instructions mean and what they do not mean.Young v. J.B. Hunt Transp., Inc., 781 S.W.2d 503, 506-07(Ky. 1989) (quotingCollins v. Galbraith,Ky., 494 S.W.2d527, 531 (Ky. 1973)).In sum, the federal district court had discretion to instructthe jury in any manner it deemed appropriate, as long as itcorrectly stated Kentucky’s substantive law, instructed on theissues relevant to the case at hand, and did not mislead thejury.See Davis v. Mutual Life Ins. Co., 6 F.3d 367, 373 (6thCir. 1993) (requiring reversal “only where the instructions,considered as a whole, are confusing, misleading, or16King, et al. v. Ford Motor Co., et al.No. 98-59607Ford also argues that the form of the question used by the districtcourt – asking whether Juror 12 agreed with the verdict – was improperand that the question was “legally meaningless.” This argument iswithout merit. If a trial court decides to poll the jury, it has substantialdiscretion in determining the manner of polling.SeeAudette, 789 F.2d at959-60. “Unless the trial judge’s interrogation serves to coerce a reluctantjuror into changing his vote, any formulation that [serves to ascertain thatthe verdict was unanimous] is permissible.”Green v. Zant, 738 F.2d1529, 1537-38 (11th Cir. 1984).this case, the district court’s limited questioning of Juror 12was proper and not coercive.7VI.Ford next contends it is entitled to a new trial because thedistrict court erred by failing to give two of its requestedinstructions. This court reviews a district court’s refusal togive requested jury instructions under an abuse of discretionstandard.See Buziashvili v. Inman, 106 F.3d 709, 715 (6thCir. 1997). We review jury instructions “as a whole in orderto determine whether [the instructions] adequately inform thejury of relevant considerations and provide a basis in law foraiding the jury to reach its decision.”Gafford v. GeneralElec. Co., 997 F.2d 150, 166 (6th Cir. 1993) (quotingBeardv. Norwegian Caribbean Lines, 900 F.2d 71, 72 (6th Cir.1990)).In a diversity action, state law determines the substance ofthe jury instructions; however, questions regarding thepropriety of the instructions are governed by federalprocedural law.See Persian Galleries, Inc. v.Transcontinental Ins. Co., 38 F.3d 253, 257 (6th Cir. 1994).In addition, trial courts have broad discretion in framing juryinstructions.See United States v. Moore,129 F.3d 873, 876-77 (6th Cir. 1977);see also Scamardo v. Scott County, 189F.3d 707, 711 (8th Cir. 1999);Jennings v. BIC Corp., 181F.3d 1250, 1254 (11th Cir. 1999). “It is the better practice fora federal court sitting in diversity to use state approved juryinstructions” in order to accurately instruct the jury on theappropriate state substantive law.Laney v. Celotex Corp.,No. 98-5960King, et al. v. Ford Motor Co., et al.9Motors Corp.,717 F.2d 1511, 1516-17 (6th Cir. 1983)(“[T]he very federal safety statute upon which GM reliesmakes it abundantly clear that compliance with theregulations promulgated thereunder does not immunize amanufacturer from common law liability.” (citing 15 U.S.C.§ 1397(c) (1976))). We hold that the plaintiffs’ claims in thiscase similarly are not preempted.III.Ford next argues that plaintiffs’ evidence was insufficientto support a verdict on either their product defect theory ortheir failure-to-warn theory. In diversity cases, this courtapplies a state-law standard of review to motions forjudgment as a matter of law which challenge the sufficiencyof the evidence necessary to support the jury's verdict.SeeMorales v. American Honda Motor Co., 151 F.3d 500, 506(6th Cir. 1998). Under Kentucky law, the applicable standardof review is as follows:Under Kentucky law, a motion for a directed verdict –the same thing as a motion for judgment as a matter oflaw under Rule 50, Fed. R. Civ. P. – should be grantedonly if “there is a complete absence of proof on amaterial issue in the action, or if no disputed issue of factexists upon which reasonable minds could differ.”Washington v. Goodman, 830 S.W.2d 398, 400 (Ky.App. 1992). In deciding such a question, “everyfavorable inference which may reasonably be drawn fromthe evidence should be accorded the party against whomthe motion is made.”Baylis v. Lourdes Hosp., Inc., 805S.W.2d 122, 125 (Ky. 1991).Id. (quotingAdam v. J.B. Hunt Transp., Inc., 130 F.3d 219,231 (6th Cir. 1997)).A.We turn first to the sufficiency of the evidence in plaintiffs’product defect claim. Following the Restatement (Second) ofTorts§ 402A, Kentucky imposes strict liability when the10King, et al. v. Ford Motor Co., et al.No. 98-5960“‘design itself selected by the manufacturer amounted to adefective condition which was unreasonably dangerous.’”Morales v. American Honda Motor Co., 71 F.3d 531, 536(6th Cir. 1995) (citingNichols v. Union Underwear Co., 602S.W.2d 429, 433 (Ky. 1980)). The plaintiff has the burden,however, to establish causation under the substantial factortest – that is, plaintiff must prove that the defendant’s conductwas a substantial factor in bringing about plaintiff’s harm.Id.at 537 (citingDeutsch v. Shein, 597 S.W.2d 141, 144 (Ky.1980);Huffman v. SS. Mary & Elizabeth Hosp., 475 S.W.2d631, 633 (Ky. 1972)). Plaintiff may use circumstantialevidence, and “in that situation, ‘the evidence must besufficient to tilt the balance from possibility to probability.’”Id. (citing cases).Ford contends that “the plaintiffs here presented notestimony upon which a jury could find that King’s injurieswere caused by belt loading that exceeded her tolerances.That was left to sheer speculation and surmise.” Ford focuseson the testimony of two of plaintiffs’ experts, Syson andLafferty. Syson testified that King would have had a belt loadof 1,100 to 1,300 pounds during the accident and that this was“right at her tolerance level,” as a 138 lb. woman. Ford alsoclaims that Lafferty testified that a woman’s tolerance level ishigher than 1,100 to 1,300 lbs. Thus, the company contendsthat neither testified that the belt load in this case exceededthe decedent’s tolerance level. Ford therefore contends thatplaintiffs failed to prove causation in this accident.We reject this argument. As an initial matter, Ford distortsLafferty’s testimony. Ford claims that “Dr. Lafferty testifiedthat the human tolerance belt loadsfor a femalewould rangebetween 1,400-1,600 pounds.” In reality, Lafferty testified,consistent with Syson, that this 1,400-1,600 lb. figurerepresented the average tolerance level for “a 50 percentilemale.” Lafferty did not give a figure for the average woman’stolerance level – or for the decedent’s tolerance level, for thatmatter – but did testify that the thresholds are lower forwomen than for men. Second, as plaintiffs note, the evidenceindicated that “there is great variation from one person to theNo. 98-5960King, et al. v. Ford Motor Co., et al.1531(d);Grossheim v. Freightliner Corp., 974 F.2d 745, 752-53(6th Cir. 1992) (affirming grant of new trial when pollingrevealed that juror only assented to verdict so that she “couldgo home”). There is a line of cases from other circuits thatholds that it is error for a district court to force a juror whohas expressed reluctance with a verdict during a jury poll tocast his or her vote in open court without further deliberationin the jury room.See, e.g., United States v. Edwards, 469F.2d 1362, 1366 (5th Cir. 1972) (finding reversible errorwhen judge demanded that juror state whether or not theverdict was hers when she initially indicated that the verdictwas hers, but that she was “still in doubt”). However, ajudge’s limited questioning of a juror regarding a poll answeris not coercive or otherwise erroneous if used simply to clearup ambiguity in the juror’s answer.See id.at1367 n.5(finding a “limited exception to the bar of questioning fromthe bench” when it is apparent that the juror was confusedabout a poll question or when the “juror’s dissent has resultedfrom an inadvertent slip of the tongue”);Williams v. UnitedStates, 419 F.2d 740, 746 (D.C. Cir. 1969) (“There is adistinction in law and in fact between actions of the trial judgeto obtain clarity in place of confusion, and actions thatproduce a likelihood that a juror has been coerced.”). Here,the situation that precipitated the district court’s questionswas confusing. The jury was leaving the courtroom, thejudge’s microphone was not on at first, and there is someindication that Juror 12 was having trouble hearing the judge.Furthermore, the district court stated, in denying Ford’smotion for a new trial based on this issue, that Juror 12appeared “perplexed.”See United States v. Brooks, 420 F.2d1350, 1353 (D.C. Cir. 1969) (noting that “the trial judge is ina much better position than an appellate tribunal to determinewhether a recalcitrant juror’s eventual acquiescence in averdict was in fact freely given”). Under the circumstances of14King, et al. v. Ford Motor Co., et al.No. 98-59606Under Fed. R. Crim. P. 31(d) a party in a criminal case has the rightto have the jury polled. Although jury polling clearly does take place incivil trials,see, e.g., Grossheim, 974 F.2d at 748, there is no expressprovision for polling in the Federal Rules of Civil Procedure.SeeAudettev. Isaksen Fishing Corp., 789 F.2d 956, 959 (1st Cir. 1986). It isapparently an unsettled question as to whether a party has a right todemand a jury poll in a civil case.See id.In any event, in civil caseswhen there are questions as to polling procedure, courts apparently lookto criminal cases for guidance.See, e.g., id.at 958-60.whether the verdict represented his or her answer.6Ratherthan answering yes or no, Juror 12 answered “Here.” Thecourt apparently thought that all of the jurors had said yes,and dismissed the jury. As the members were leaving,however, the court reporter alerted the court to Juror 12'sanomalous answer. The court stopped the jury, and thefollowing exchange occurred:THE COURT: All right. I need to know from youwhether the verdict that was rendered represents yourown verdict. Yes or no?A JUROR: No.THE COURT: I’m sorry?A [DIFFERENT] JUROR: He can’t hear you.THE COURT: I’m sorry I don’t have the microphoneon. I need to know whether the verdict that was returnedrepresents your verdict?A JUROR: No.THE COURT: Do you by saying no, are you saying thatyou do not agree with the verdict?A JUROR: I agree with it, yeah, all of it.THE COURT: All right. What do you mean when yousay that you say it’s not your verdict? I just want toknow if you agree with it or not agree with it.A JUROR: I agree with it, what we put down.Ford’s position is that the court coerced Juror 12 into givinghis consent to the verdict. Generally, the proper procedurewhen a poll indicates that unanimity with a verdict isuncertain is to return the jury to the jury room for furtherdeliberations or to declare a mistrial.Cf. Fed. R. Crim. P.No. 98-5960King, et al. v. Ford Motor Co., et al.11next” with regard to the amount of force that they can tolerate.Therefore, one should not interpret Syson’s statement that thebelt loads were “right at her tolerance level” as an indicationthat the belt loads did not exceed the decedent’s tolerancelevel. Finally, circumstantial evidence strongly supports theplaintiffs’ case. After the accident, the decedent was foundturning blue with the seat belt cutting into her neck and chest.The belt had to be cut to relieve the pressure. There istestimony that her injuries were typical of those caused byrestraint systems. Additionally, plaintiffs’ experts eliminatedother possible sources -- there was no evidence that thedecedent impacted the windshield or the dashboard, with theexception of her hand and possibly her knee. There wascertainly sufficient evidence in this case whereby a jury couldhave concluded that decedent’s injuries were caused byexcessive belt loads.B.Ford also contends that there was insufficient evidence forthe jury to find that the warnings in the 1992 Escort weredefective and a substantial factor in causing the decedent’sinjuries. Specifically, Ford claims that the evidence in thecase demonstrates that the danger of not wearing the lap beltwas known to the decedent and that the warnings located inthe Escort as to that danger were adequate.Ford is correct that in Kentucky there is no duty to warn ofa known danger.See Hutt v. Gibson Fiber Glass Prods., Inc.,914 F.2d 790, 793 (6th Cir. 1990);Demaree v. Toyota MotorCorp., 37 F. Supp. 2d 959, 967 (W.D. Ky. 1999). Theevidence here demonstrated that the decedent was an avid seatbelt user and that she had in fact been wearing the lap belt inthe Escort earlier in the day.The jury, however, may have permissibly concluded fromthe evidence in this case that the decedent was aware that notwearing the lap belt would reduce the effectiveness of therestraint system in preventing injuries caused by hitting thedashboard or the like, but that she was not aware that thefailure to wear the belt could lead to deadly injuries caused by12King, et al. v. Ford Motor Co., et al.No. 98-5960the shoulder harness, even in a relatively minor accident.Therefore, we cannot conclude, as a matter of law, that thedecedent was aware of the danger involved in this case.Nor can we conclude that the Escort’s warnings wereadequate as a matter of law. The warning located on theEscort’s visor stated:IMPORTANT FOR YOUR SAFETYFollowing these instructions will greatly improve yourchances of avoiding severe injury in case of an accident.Be sure the shoulder belt buckle is engaged.Always wear your lap belt when the car is moving. If alap belt cannot be worn, you should move the seatforward so your knees are as close to the instrumentpanel as possible.Under Kentucky law, a warning “must be fair and adequate,to the end that the user, by the exercise of reasonable care onhis own part, shall have a fair and adequate notice of thepossible consequences of use or even misuse.”Post v.American Cleaning Equip. Corp., 437 S.W.2d 516, 520 (Ky.App. 1968) (citing 76 A.L.R.2d 9, 37 (1961)). While thewarning in this case does indicate that following its advicewill “improve your chances of avoiding severe injury in caseof an accident” it does not indicate that misuse could lead tosevere injury caused by the shoulder belt itself. It wascertainly within the jury’s prerogative to conclude that thewarning in this case did not adequately convey the dangersinvolved.Postprovides:As an example, it may be doubted that a sign warning,“Keep off the Grass,” could be deemed sufficient toapprise a reasonable person that the grass was infestedwith deadly snakes. In some circumstances a reasonableman might well risk the penalty of not keeping off thegrass although he would hardly be so daring if he knewthe real consequences of his failing to observe thewarning sign. Or, a warning to “Keep in a Cool Place”might not be sufficient if the result of nonobservance wasa lethal explosion of the container.No. 98-5960King, et al. v. Ford Motor Co., et al.135The verdict had to be unanimous in this diversity civil case becausethe court gave a unanimity instruction.SeeGrossheim v. FreightlinerCorp., 974 F.2d 745, 753 (6th Cir. 1992).Id. at 520. We affirm the district court on this issue.IV.Ford next argues that the district court erred by failing toorder a new trial when the jury returned with inconsistentinterrogatory answers. Fed. R. Civ. P. 49(b) provides thatwhen the jury so returns, the court should send the jury backfor further deliberations or order a new trial. Ford moved forthe latter, but the district court did the former.This issue requires little discussion. “In deciding at whatpoint further deliberations by a particular jury would befruitless or unduly coercive, the trial judge has widediscretion.”United States v. Stevens, 177 F.3d 579, 583 (6thCir. 1999). Ford provides absolutely no case law or reasoningto support its claim that resolving the inconsistency in thejury’s initial answers to the interrogatories required notmerely a correction, but a change in the jury’s conclusions.Cf. United States v. Vazquez-Rivera, 135 F.3d 172, 177 (1stCir.1998) (“Painting black lines on the sides of a horse andcalling it a zebra does not make it one.”).V.Ford next argues that it was entitled to a new trial becauseof defects in the jury verdict. This court reviews for abuse ofdiscretion a district court’s denial of a motion for a new trial.See United States v. Rapanos, 115 F.3d 367, 372 (6th Cir.1997).Ford claims that the verdict in this case was notunanimous.5After the jury returned following furtherdeliberations, each member of the jury was polled as to