24 King, et al. v. Ford Motor Co., et al. No. 98-5960

load 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, finding

that 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 exclude

its 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 court

is AFFIRMED. 

1

RECOMMENDED FOR FULL-

Pursuant to Sixth Circ

ELECTRONIC CITATION: 2000 F

File Name: 00a0

UNITED STATES COU

FOR THE SIXTH 

____________

CHARLES 

KING, as

Administrator of the Estate ofPatti Ann King,

Plaintiff- Appellee,

AMANDA 

SUE 

KING, by and

through her next friendCharles King; ASSOCIATED

INSURANCE 

COMPANIES,

Intervening

Plaintiffs-Appellees,

v.

FORD 

MOTOR 

COMPANY;

MAZDA 

MOTOR

CORPORATION,

Defendants-Appellants.

Appeal from the United St

for the Eastern District of K

No. 95-00117—Jennifer B. Co

Argued: August 

Decided and Filed: A
2 King, et al. v. Ford Motor Co., et al. No. 98-5960

*

The Honorable Algenon L. Marbley, United States District Judge for

the Southern District of Ohio, sitting by designation.

Before: BATCHELDER and COLE, Circuit Judges;

MARBLEY, District Judge.*

_________________

COUNSEL

ARGUED: 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, weAFFIRM the judgment of the district court.

No. 98-5960 King, et al. v. Foinstruction on alternative design. See Fu

In fact, Kentucky’s courts believe that thias to the issues at stake under this doctrin

VII.

Ford finally claims that it is enti

the district court erred by excludfrom two of Ford’s experts, RGermane. Maugh would have teswas not defective because it did nrestraint system, and Germane woloads in the 1992 Hyundai Excellimiter, were actually higher than Ford Escort. The testimony demonstrated that load limiters weEscort. The district court held that not admissible under Fed. R. Evidwithin the allotted time window, would testify about these matters. ruling for abuse of discretion. See Co., 145 F.3d 804, 807 (6th Cir. 1

Fed. R. Evid. 26(a)(2)(B) provi

disclosure regarding an expert complete statement of all opinionbasis and reasons therefor.” Fed. provides that “[a] party that withofails to disclose information requirnot, unless such failure is harmleevidence at a trial, at a hearing, or oinformation not so disclosed.” Foprior to trial, it disclosed that its eload limiters in the Hyundai Excelhad substantial justification for faiany event, it would be fundamentproffered testimony. Ford claimfailing to make the required dibecause the testimony in question wthe “surprise” testimony of plaintiff
22 King, et al. v. Ford Motor Co., et al. No. 98-5960

9The trial court was not required, as a matter of federal law, to

instruct 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 an

Since the time Kentucky adopted the doctrine of “strictliability” in products cases as stated in the Restatement,Second, Torts, § 402A, in the case of Dealer’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., 676

S.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 of

these 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 by Fulkerson. It was therefore

sufficient under Kentucky law, and we do not find that thedistrict court committed reversible error in giving thatinstruction.9

No. 98-5960 King, et al. v. Fo

1One of Ford’s experts described the 

right down in the lower part of the instrumso that if you got in a frontal accident, the torso back but the lower torso would slidbolster and the bolster would, in effeabsorbing energy in the lower torso. . . .”

I.

On August 21, 1994, Patti Ann 

and Erica Brockman were in GingEscort, approaching McKee, Kethirty-five miles per hour. King wseat, Ginger Brockman was drivingin the back seat. A pickup truck direction, driven by sixteen-year-oattempted to turn in front of Bdriveway of a Dairy Freeze restauraclipped the truck, causing a Delta Vthe car on the order of twenty-seve

The Escort employed a “pass

restraint system in its front seats. two-point motorized shoulder belt in place when the occupant closedesigned to restrain the lower tors

For a period of about six months, Talon with a similar system, and “avid seatbelt user.” At the time King was wearing only the automthe manual lap belt. She apparently in the trip, but after her party stoppto buy a newspaper, she failed to r

King suffered massive injuries 

fractured ribs and a fractured collalungs; and a tear to the left auultimately died of a lack of oxygen her heart and lung injuries. Kinginjuries were the result of defect
4 King, et al. v. Ford Motor Co., et al. No. 98-5960

2Neither Ginger Brockman nor Brian Coyle were parties to this

action. Their insurance companies settled the Kings’ claims against them.

3The Safety Act was originally codified at 15 U.S.C. § 1381 et seq.

Congress recodified the act in 1994, “‘without substantive change’ to theunderlying provisions.” Geier v. American Honda Motor Co., 166 F.3d

1236, 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 for

partial 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 codified3 at 49 U.S.C. § 30101 et seq.,

and regulations promulgated thereunder, see 49 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 and

No. 98-5960 King, et al. v. Fo

see also Schrand, 1999 WL 54087“the exercise of ordinary care to pfrom occurring to another person”the district court did not abuse its dthe requested instruction.

B.

Ford next contends that, with r

defect claim, that the district court instruction on alternate feasible instruction that the jury should detan alternate restraint-system desigEscort was manufactured and whemanufacturer would have used thidesign-defect instruction was as fo

In order to recover under her [

the plaintiffs must establish twfollows:

First, that when the 1992 

possession of the defendants, the seat belt restraint system was defdangerous to the consumer.

And second, that the un

defective condition of the macfactor in causing the injury and 

As the term is used in this 

defective and unreasonably dana risk of accidental injury to a pordinarily prudent company engof similar products, being fully anot have put it on the market.

In Ford Motor Co. v. Fulkerson, (Ky. 1991), the Kentucky Supapproved for use in product liabilibare-bones design-defect instructioin this case. The Fulkerson court 
20 King, et al. v. Ford Motor Co., et al. No. 98-5960

the safety purpose for the belt.” See Miller’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’s

regular 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.2d

71, 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. 98-5960 King, et al. v. Fo

4The jury apportioned fault as follo

20%; Patti King, 10%; Ginger Brockm$823,172.58, Amanda Sue King recovereInsurance Cos. recovered $49,937.58. awarded damages in the amount 

renewed its motion for judgment aa motion for a new trial, both to no followed.

 II.

Ford first argues that plaintiffs’ 

federal law. This court generally decision with regard to preempMobilnet v. Johnson, 111 F.3d 469

The Supremacy Clause of the U

provides that federal law “shall bLand . . . any Thing in the Constituto the Contrary notwithstanding.” as has been clear since the SupM’Culloch v. Maryland, 17 U.S. that conflicts with federal law is “wv. Ligget Group, Inc., 505 U.S. Maryland v. Louisiana, 451 U.S. 7

In applying the Supremacy Cla

assumption that the historic police not to be superseded by [a] Federclear and manifest purpose of Cong518 U.S. 470, 485 (1996) (citing Corp., 331 U.S. 218, 230 (1947)). of Congress is the ultimate touchstcase.” Id. (citing Cipollone, 505 UCourt has stated that Congress may clear either expressly or implicitlyMyrick, 514 U.S. 280, 287 (1995turn, takes two forms. “We havpre-emption where it is impossib
6 King, et al. v. Ford Motor Co., et al. No. 98-5960

comply 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, and

Standard 208 promulgated thereunder. The Safety Actauthorizes the Secretary of Transportation to promulgateFederal Motor Vehicle Safety Standards (“FMVSS”). See 49U.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 the

Safety 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. See 49 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 applies

in 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 which

No. 98-5960 King, et al. v. Focourt characterized the requestestandard,” and, as such, not a necescharacterization is consistent witCourt’s indication that, under Kenwhether a defendant has a duty to question of law to be resolved by tv. Commonwealth Life Ins. Co., 81992) (“The question of duty preSheehan v. United Service Auto. AsCt. App. 1996); Schrand v. Grant, N

1999 WL 540877, at *2 (Ky. Ct. A

In any event, Ford failed to pr

warranting such an instruction. Coon appeal, the absence of a duty to the case. Instead, Ford consistentlwere adequate, a distinct issue from For example, Ford did not plead a lresponse to King’s complaint. arguments, Ford did not state that it duty to warn. Rather, Ford told thwarnings were adequate, that it wher seat belt and knew she ougsupportive evidence for its argumenKing. Evidence in the case did in fan avid seat belt user, had previoBrockman’s Escort, and had briefwith a restraint system similar to Ford only raised the issue of a lack moved for a directed verdict on thcourt responded, correctly, “I don’to her knowledge of the danger of 

The jury instructions initially sub

did not include one stating that Fowarn of a known danger. It was ohad finalized the charge when Ford an instruction with this language. that the court would instruct the juwarn a person of unknown danger
18 King, et al. v. Ford Motor Co., et al. No. 98-5960

8We recognize that two of our cases – one in unelaborated dicta and

the other unpublished – suggest that the federal district court is notrequired to 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.8 In fact, a federal court’s consideration of

a 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 give

an 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 jury

instruction 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 district

No. 98-5960 King, et al. v. Fofound civil liability for using one rather than another would be preremoving one option would obvioaccomplishment and execution oobjectives of Congress,” nammanufacturers have flexibility in cHines v. Davidowitz, 312 U.S. 52, that plaintiffs’ suit would limit this characterizes plaintiffs’ suit as onautomatic seatbelts with manual defective. See Irving v. Mazda M768-69 (11th Cir. 1998) (holding s

We agree with plaintiffs, h

misconstrued their case. As plaint

In the case at bar . . . plaintiffs’ pdesign choice made by defendanfrontal collisions – an automatic bolster – was inherently defectidesign was defective due to failand/or change the location of change the location of the belt a

Such a claim is not preempted FMVSS provide only the “minimvehicle or motor vehicle equipmen§ 30102(a)(9). The Safety Act’s sathat compliance with an FMVmanufacturer from liability at commmanufacturers may be held liable minimum standards when their decThis is the essence of plaintiffs’ cl

We find Perry v. Mercedes Ben

957 F.2d 1257 (5th Cir. 1992), to There, plaintiff alleged that the aunreasonably dangerous ‘decelerathreshold’” despite the fact that iStandard 208. Id. at 1260. In othchallenge Mercedes’s decision to p
8 King, et al. v. Ford Motor Co., et al. No. 98-5960

but 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. General

No. 98-5960 King, et al. v. Fo901 F.2d 1319, 1321 (6th Cir. 1990Carbide Corp., 790 F.2d 552 (6th 

“Kentucky follows the ‘bare-bon

instructions.” McGuire v. CommoS.W.2d 931, 936 (Ky. 1994); Anderson, 754 F.2d 678, 681-82 (6jury instructions “should not contabut should provide only the bare jury determination. This skeleton counsel on closing argument.” BaS.W.2d 684, 691 (Ky. 1990) (citinS.W.2d 133, 136 (Ky. 1981)). The has stated that:

In conclusion, it may be well to counsel feels that jurors might dnot warranted by the specifiinstructions, his opportunity to gthe closing argument. If instrconcise and to the point, as supplementation, elaboration afall within the realm of advopractice in some jurisdictions, comments at length to the jury otraditional objective of our forconfine the judge’s function to thcounsel see to it that the jury clthe instructions mean and what 

Young v. J.B. Hunt Transp., Inc., (Ky. 1989) (quoting Collins v. Ga

527, 531 (Ky. 1973)).

In sum, the federal district court 

the jury in any manner it deemed correctly stated Kentucky’s substanissues relevant to the case at handjury. See Davis v. Mutual Life InsCir. 1993) (requiring reversal “onconsidered as a whole, are co
16 King, et al. v. Ford Motor Co., et al. No. 98-5960

7Ford also argues that the form of the question used by the district

court – 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. See Audette, 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.7

VI.

Ford next contends it is entitled to a new trial because the

district 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 (6th

Cir. 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) (quoting Beard

v. Norwegian Caribbean Lines, 900 F.2d 71, 72 (6th Cir.1990)). 

In a diversity action, state law determines the substance of

the 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, 189

F.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. 98-5960 King, et al. v. FoMotors Corp., 717 F.2d 1511, (“[T]he very federal safety statutmakes it abundantly clear tharegulations promulgated thereundmanufacturer from common law li§ 1397(c) (1976))). We hold that thcase similarly are not preempted.

III.

Ford next argues that plaintiffs’ 

to support a verdict on either theitheir failure-to-warn theory. In dapplies a state-law standard of judgment as a matter of law which of the evidence necessary to suppMorales v. American Honda Moto

(6th Cir. 1998). Under Kentucky laof review is as follows: 

Under Kentucky law, a motion the same thing as a motion for jlaw under Rule 50, Fed. R. Civonly if “there is a complete material issue in the action, or if exists upon which reasonable Washington v. Goodman, 830 

App. 1992). In deciding sucfavorable inference which may rethe evidence should be accorded the motion is made.” Baylis v. LS.W.2d 122, 125 (Ky. 1991). 

Id. (quoting Adam v. J.B. Hunt Tr

231 (6th Cir. 1997)).

A.

We turn first to the sufficiency of 

product defect claim. Following thTorts § 402A, Kentucky impose
10 King, 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) (citing Nichols v. Union Underwear Co., 602

S.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 (citing Deutsch 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 no

testimony 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 distorts

Lafferty’s testimony. Ford claims that “Dr. Lafferty testifiedthat the human tolerance belt loads for a female would 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 the

No. 98-5960 King, et al. v. Fo31(d); Grossheim v. Freightliner C(6th Cir. 1992) (affirming grant revealed that juror only assented to go home”). There is a line of casholds that it is error for a district has expressed reluctance with a vecast his or her vote in open court win the jury room. See, e.g., UniteF.2d 1362, 1366 (5th Cir. 1972) when judge demanded that juror verdict was hers when she initially was hers, but that she was “still judge’s limited questioning of a juris not coercive or otherwise erroneup ambiguity in the juror’s answ(finding a “limited exception to ththe bench” when it is apparent thabout a poll question or when the “jfrom an inadvertent slip of the tonStates, 419 F.2d 740, 746 (D.C. distinction in law and in fact betweto obtain clarity in place of coproduce a likelihood that a juror hthe situation that precipitated the was confusing. The jury was lejudge’s microphone was not on aindication that Juror 12 was having Furthermore, the district court smotion for a new trial based on appeared “perplexed.” See United 1350, 1353 (D.C. Cir. 1969) (notina much better position than an appewhether a recalcitrant juror’s evverdict was in fact freely given”). U
14 King, et al. v. Ford Motor Co., et al. No. 98-5960

6Under Fed. R. Crim. P. 31(d) a party in a criminal case has the right

to 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 express

provision for polling in the Federal Rules of Civil Procedure. See Audette

v. 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 cases

when 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.6 Ratherthan 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 giving

his 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. 98-5960 King, et al. v. Fo

next” with regard to the amount of fTherefore, one should not interpret belt loads were “right at her tolerathat the belt loads did not exceed level. Finally, circumstantial evidplaintiffs’ case. After the acciden

turning blue with the seat belt cuttiThe belt had to be cut to relievtestimony that her injuries were trestraint systems. Additionally, plaother possible sources -- there wdecedent impacted the windshield exception of her hand and possibcertainly sufficient evidence in this have concluded that decedent’s excessive belt loads.

B. 

Ford also contends that there wa

the jury to find that the warnings defective and a substantial factor injuries. Specifically, Ford claimcase demonstrates that the danger was known to the decedent and ththe Escort as to that danger were a

Ford is correct that in Kentucky 

a known danger. See Hutt v. Gibso

914 F.2d 790, 793 (6th Cir. 1990); Corp., 37 F. Supp. 2d 959, 967 

evidence here demonstrated that thbelt user and that she had in fact bthe Escort earlier in the day. 

The jury, however, may have pe

the evidence in this case that the dewearing the lap belt would reducrestraint system in preventing injudashboard or the like, but that shfailure to wear the belt could lead to 
12 King, et al. v. Ford Motor Co., et al. No. 98-5960

the 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 were

adequate 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. Post provides:

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. 98-5960 King, et al. v. Fo

5The verdict had to be unanimous in 

the court gave a unanimity instruction. Corp., 974 F.2d 745, 753 (6th Cir. 1992)Id. at 520. We affirm the district c

IV.

Ford next argues that the distric

order a new trial when the jury rinterrogatory answers. Fed. R. Cwhen the jury so returns, the court for further deliberations or order a the latter, but the district court did 

This issue requires little discuss

point further deliberations by a fruitless or unduly coercive, thdiscretion.” United States v. SteveCir. 1999). Ford provides absoluteto support its claim that resolving jury’s initial answers to the intmerely a correction, but a change Cf. United States v. Vazquez-RiveCir.1998) (“Painting black lines ocalling it a zebra does not make it 

V.

Ford next argues that it was enti

of defects in the jury verdict. This discretion a district court’s denial oSee United States v. Rapanos, 111997).

Ford claims that the verdict 

unanimous.5 After the jury re

deliberations, each member of t