IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-40387

ERICA BLYTHE, individually and as next friend and guardian of H.B., a 

minor; KODY BLYTHE, individually and as next friend and guardian of 

H.B., a minor, 

 Plaintiffs - Appellants

v.

BUMBO INTERNATIONAL TRUST, formerly known as Jonibach 

Management Trust; TARGET CORPORATION, 

 Defendants - Appellees

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 6:12-CV-36

Before JONES, BARKSDALE, and PRADO, Circuit Judges.

PER CURIAM:*

In this product-liability diversity action, for which Texas law controls, at 

issue is whether the product had marketing and design defects. After being 

placed in a Bumbo seat (the Bumbo) on a table, Erica and Kody Blythe’s eightmonth-old infant was injured when she separated from the Bumbo and fell onto 

 

* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 5th Cir. 

R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

July 27, 2015

Lyle W. Cayce

Clerk

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the floor. The Blythes sued Bumbo International Trust, the designer and 

manufacturer of the Bumbo, and Target Corporation, the seller (collectively, 

Bumbo), claiming the Bumbo was defectively designed and contained 

inadequate warnings. Summary judgment was awarded Bumbo on the 

marketing-defect claim; and, after the jury returned a verdict for Bumbo on 

the design-defect claim, judgment as a matter of law was denied for the 

Blythes. At issue are those two rulings, as well as the exclusion of post-incident

evidence concerning the design. AFFIRMED.

I.

The Bumbo, which is circular with a diameter of approximately 15 inches

and made from foam-like material, is a seat designed to allow three to 14-

month-old infants to sit in an upright position when they are still too young to 

do so on their own. The Bumbo features: a high back support which leans 

slightly to the rear of the seat; high side-walls; tapered leg openings, which 

elevate slightly the infant’s legs; and a concave bottom, which, according to a 

biomechanical engineer testifying regarding the relative safety of the Bumbo, 

is only “an inch or two off the floor” when an infant is in the seat.

The Bumbo at issue had two warnings printed on it, warning, inter alia,

against using it on a raised or elevated surface. The box in which the Bumbo 

was sold and an instruction leaflet inside the box contained similar warnings

against not using the Bumbo on a raised or elevated surface.

The Blythes’ infant was injured in 2010. Prior to 2007, a warning on the 

back of the Bumbo stated: 

WARNING

NEVER USE ON A RAISED SURFACE

NEVER USE AS A CAR SEAT OR BATH SEAT

DESIGNED FOR FLOOR LEVEL USE ONLY

NEVER LEAVE YOUR BABY UNATTENDED

AS THE SEAT IS NOT DESIGNED TO BE

TOTALLY RESTRICTIVE AND MAY NOT

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PREVENT RELEASE OF YOUR BABY IN THE

EVENT OF VIGOROUS MOVEMENT

In 2007, prior to the Bumbo’s being given to the Blythes, and after 

receiving reports of injuries resulting from infants separating from their 

Bumbos, the Consumer Product Safety Commission (CPSC) issued a press 

release regarding the Bumbo’s safety and discussed with Bumbo the need to 

recall the product. The Bumbo was recalled in October 2007 to address the 

adequacy of the warnings. As part of that recall, Bumbo added a second 

warning on the front-left side of the Bumbo and revised the language of the 

box and leaflet warnings. The second on-seat warning reads: “WARNING -

Prevent Falls: Never use on any elevated surface”. Directly above “WARNING” 

was a triangle with a prominent exclamation point. After the Bumbo was given 

to the Blythes in 2009, it was recalled again in 2012 to implement a safety 

harness. (The Blythes contend the 2012 recall was mandated by CPSC; 

Bumbo, that it was voluntary.)

In November 2009, the Blythes received the purple Bumbo at issue as a 

baby-shower gift. It was purchased from a Target retail store after the 2007 

recall. (Target returned its entire inventory of Bumbos in response to the 2007 

recall. The Bumbo at issue was manufactured after that recall.)

After receiving the Bumbo, the Blythes admittedly threw away the box 

in which it was sold and received, as well as the leaflet inside that box, without 

reading the warnings on either the box or the leaflet. The Blythes also admit 

they never read the two warnings on the Bumbo. (They contend this was 

because they did not see the on-seat warnings.)

In September 2010, while she was preparing dinner, Erica Blythe placed

her eight-month-old infant in the Bumbo on top of the kitchen table to feed her. 

According to her deposition testimony, while Erica Blythe was sitting at the 

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table next to her, the infant pushed back with her feet, arched her back, came 

out of the Bumbo, and fell onto the floor, resulting in a skull fracture. 

In this action, the Blythes claimed: the Bumbo was designed defectively;

and the warnings were inadequate to warn against infants being able to fall 

out of the Bumbo. Bumbo moved for summary judgment.

Summary judgment was awarded Bumbo for the marketing-defect claim, 

but denied for the design-defect claim. In opposition to the former, the Blythes 

presented a report by their expert stating that consumers may fail to heed the 

Bumbo’s on-seat warnings because of their “relative small size . . . , fadeability, 

location, and the lack of contrast between the lettering and the product”. The 

court excluded the report as an attempt to have an “expert[] . . . invade the role 

of the judge in making legal determinations”. Blythe v. Bumbo Int’l Trust, No. 

6:12-CV-36, 2013 WL 6190284, at *3 (S.D. Tex. 26 Nov. 2013) (Blythe I). The court 

concluded the warnings were adequate as a matter of law; and, even if they 

were not, by failing to read the warnings, the Blythes failed to show the 

requisite causal link between any assumed inadequate warnings and the 

resulting injury. Id. at *3–5.

Prior to trial on the design-defect claim, Bumbo moved in limine to 

exclude any evidence related to the 2012 recall. In opposing the motion, the 

Blythes presented reasons why such evidence was admissible. At the pretrial 

conference, the court granted Bumbo’s motion as it pertained to “anything 

related to the CPSC’s investigation of the 2012 recall”, ruling the evidence 

inadmissible, under Federal Rule of Evidence 407, as a subsequent remedial 

measure. 

At the close of the evidence, Bumbo and the Blythes moved for judgment 

as a matter of law (JML) on the design-defect claim. The motions were denied. 

After the jury returned a verdict for Bumbo and judgment was entered, the 

Blythes again moved for JML and moved for a new trial. (The Blythes claimed 

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they were entitled to a new trial based on the court’s exclusion of the 2012-

recall-related evidence.) Both motions were denied. Regarding JML, the court

ruled: “Reasonable jurors could have concluded that the Bumbo seat, when 

used as it was intended, was not defectively designed. In fact, there was scant 

evidence supporting the opposite view that the [Bumbo] was dangerous when 

used as designed.” Blythe v. Bumbo Int’l Trust, No. 6:12-CV-36, slip op. at 8

(S.D. Tex. 26 Mar. 2014) (emphasis added) (Blythe II).

II.

The Blythes challenge the court’s: granting summary judgment for 

Bumbo against their marketing-defect claim; excluding evidence regarding the 

2012 recall concerning the safety of using the Bumbo without a safety harness; 

and denying their second JML motion on their design-defect claim. Among 

other assertions, Bumbo maintains many of the points raised by the Blythes 

are waived. It is necessary to address only one of those waiver claims.

A.

For the marketing-defect claim, the district court granted summary 

judgment on two bases: there was no genuine dispute of material fact 

regarding the adequacy of the on-seat warnings, and they were adequate as a 

matter of law; and, in the alternative, by failing to read the warnings on the 

Bumbo, the box, or the leaflet inside the box, the Blythes could not establish 

causation.

The Blythes do not dispute the adequacy of the warnings as written. 

Instead, they claim a genuine dispute of material fact exists regarding the 

condition, size, placement, and durability of the warnings on the Bumbo. In 

that regard, they contend the court erred in refusing to consider their expert’s

report. Further, they contend the court misapplied the summary-judgment 

standard by drawing factual inferences in favor of Bumbo as evidenced by the 

court’s including in its opinion Bumbo’s submitted photographs of an exemplar

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Bumbo (red warnings on a yellow Bumbo), as opposed to their post-incident photos

of the Bumbo given to them (faded red warnings on a purple Bumbo). 

Addressing the court’s alternative reason for granting summary 

judgment (failure to prove causation), the Blythes claim Texas law requires 

undisputed evidence showing they “ignored” the warnings. They contend their 

admittedly discarding the box and leaflet without reading the warnings, and their 

failure to “see” them on the Bumbo, do not amount to ignoring them. Additionally, 

they contend: the law requires Bumbo show that heeding the warnings would 

have prevented injury; and there is a genuine dispute of material fact on that 

point. 

Bumbo maintains some of the Blythes’ contentions were waived by their not 

being raised in district court in opposition to summary judgment. Because 

summary judgment was proper, we need not reach this waiver claim.

“We review a grant of summary judgment de novo, applying the same 

standard as the district court and viewing the evidence in the light most favorable 

to the non-moving party.” Am. Family Life Assur. Co. of Columbus v. Biles, 714 

F.3d 887, 895 (5th Cir. 2013) (citation omitted). In addition to the Blythes’ 

admitting, as discussed supra, that they never read the warnings on the box, 

leaflet, and the Bumbo, Erica Blythe admitted in her deposition that she did not 

know the condition of the two warnings on the Bumbo either at the time she 

received it as a gift or at the time of the incident. Essentially for the reasons 

provided by the district court in its comprehensive and well-reasoned opinion

granting summary judgment to Bumbo, including its ruling on causation, see

Blythe I at *3–5, summary judgment was proper against the marketing-defect 

claim.

B.

For the design-defect claim, the Blythes challenge the court’s granting, 

before trial, Bumbo’s motion in limine for the 2012-recall-related evidence, 

claiming the court erroneously excluded: information on Bumbo’s website in 

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October 2012; pre-2012-recall communications between Bumbo and CPSC in 2011 

and 2012; and other evidence relating to that recall. They contend this 

information is admissible, inter alia, to impeach: Bumbo’s claim that the Bumbo 

was reasonably safe as initially designed (without a safety harness); and Bumbo’s 

claim (according to the Blythes) that implementing the safety harness was not

feasible. 

Bumbo counters that the statements on its website are inadmissible 

because they do not directly contradict Bumbo’s testimony. Additionally, 

Bumbo contends the post-incident communications between Bumbo and CPSC 

are inadmissible as a subsequent remedial measure because the recall was 

voluntary on the part of Bumbo and those communications discuss possible

implementation of the safety harness, not prior incidents. Further, Bumbo 

claims the communications do not fall within Rule 407’s “feasibility” exception 

for impeachment purposes because the feasibility of installing the safety 

harness was not contested. Last, while admitting a safety harness makes the 

Bumbo safer, Bumbo maintains it was not unreasonably dangerous without it. 

Thus, according to Bumbo, because any subsequent remedial measures are 

inconsequential to determining whether the Bumbo was unreasonably 

dangerous when it was manufactured and sold, the Blythes cannot show 

substantial prejudice. 

1.

Bumbo claims: by contesting only the district court’s reliance on Rule 

407, the Blythes waived their challenge to the court’s excluding the 2012-

recall-related evidence, based also (according to Bumbo) on Rules 402 (relevant 

evidence is admissible) and 403 (inter alia, unfairly prejudicial evidence is 

inadmissible); and, as a result, the exclusion of the evidence under Rules 402 

and 403 is not contested. The court, however, did not base its exclusion ruling 

on Rules 402 or 403. In granting Bumbo’s motion in limine at the pretrial 

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conference, the court stated it was excluding the evidence based on Rule 407, 

as a “subsequent remedial measure”. Later, denying the Blythes’ post-trial 

motions, the court revisited this issue and relied on Rule 407, stating in a 

footnote: “For similar reasons, Rule 403 also supports exclusion”. Blythe II at 

4 n.2.

In short, the court based exclusion primarily, if not entirely, on Rule 407. 

The court never mentioned Rules 402 or 403 at the pretrial conference, and 

only referenced Rule 403 in its post-trial order to explain that Rule 407 

prevents the unfair prejudice proscribed by Rule 403. Therefore, the Blythes

have not waived their challenge to the exclusion of the 2012-recall-related 

evidence.

2.

“A district court’s decision to exclude evidence is reviewed for an abuse of 

discretion; however, even if an abuse of discretion is found, this court looks to 

whether the error affected a substantial right, i.e., was harmless.” Smith v. 

Jaramillo, 394 F. App’x 183, 186 (5th Cir. 2010); see also Fed. R. Evid. 103(a).

As discussed, in granting Bumbo’s motion in limine at the pretrial 

conference, the court excluded, under Rule 407, evidence related to the 2012 recall 

because it “was a subsequent remedial measure”. In general, “[w]hen measures 

are taken that would have made an earlier injury or harm less likely to occur, 

evidence of the subsequent measures is not admissible to prove[, inter alia:] a 

defect in a product or its design; or a need for a warning or instruction”. Fed. R. 

Evid. 407. On the other hand, “the court may admit this evidence for another 

purpose, such as impeachment or—if disputed—proving . . . the feasibility of 

precautionary measures”. Id. “[W]hen the decision to admit or exclude evidence 

of a design change is a close call, a district court’s decision to exclude the evidence 

is within its discretion”. Baker v. Canadian Nat’l/Ill. Cent. R.R., 536 F.3d 357, 

367 (5th Cir. 2008).

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a.

The Blythes claim statements taken from Bumbo’s website in October 2012 

should have been admitted to impeach trial testimony by Bumbo’s corporate 

representative. On cross-examination, that representative responded in the 

affirmative when asked: “[I]s it your testimony that the Bumbo Baby Seat is safe 

to be used without a seat belt?” As a result, and seeking to have the court set 

aside the pretrial exclusion ruling in favor of Bumbo, the Blythes then sought to 

introduce evidence from Bumbo’s website, describing the proper way to use the 

newly modified Bumbo, which post-2012 included a safety harness: 

Is my baby safe if I continue to use my Bumbo Baby Seat without a 

restraint belt?

Do not use your Bumbo Baby Seat until the restraint belt and new 

warning sticker have been properly added to your seat. Be sure to 

read the new warning sticker before using the seat.

I’ve never had a problem with my child getting out of the Bumbo Baby 

Seat. Should I still use the restraint belt?

Yes, please use the restraint belt. It is important to follow all of the 

product instructions and have a clear understanding of the new 

warning sticker provided with the Repair Kit. Children may move 

unexpectedly and using the belt will help prevent children from 

getting out of or falling from the seat when used on the floor, or 

causing the Bumbo Baby Seat to slide or move. 

(Emphasis added.) The court did not alter its exclusion ruling. 

The Blythes claim the website instructions impeach Bumbo’s corporate 

representative’s testimony that it is safe to use the Bumbo without a safety 

harness. Regarding the impeachment exception to Rule 407, our court has 

cautioned against its liberal application, stating district courts “should guard 

against the improper admission of evidence to prove prior negligence under the 

guise of impeachment”. Hardy v. Chemetron Corp., 870 F.2d 1007, 1011 (5th Cir. 

1989); see also id. (“This exception must be applied with care, since any evidence 

of subsequent remedial measures might be thought to contradict and so in a sense 

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impeach a party’s testimony that he was using due care at the time of the accident 

. . . . If this counted as ‘impeachment’ the exception would swallow the rule.” 

(alterations and internal quotation marks omitted) (quoting Pub. Serv. Co. of Ind. 

v. Bath Iron Works Corp., 773 F.2d 783, 792 (7th Cir. 1985)).

The district court did not abuse its discretion in excluding the instructions

on Bumbo’s website. This is the exact situation cautioned against in Hardy; the 

Blythes attempt to introduce the website instructions for the purpose of proving 

a design defect “under the guise” of claiming they are admissible under the 

impeachment exception. 

Further, the website instructions do not directly impeach Bumbo’s 

representative’s testimony. The testimony and the excluded evidence are 

reconcilable. The statements on the website never state that use of the Bumbo on 

a non-elevated surface without the safety harness renders the product unsafe; 

rather, the website statements only instruct users not to use it without the safety

harness. 

Finally, to the extent the Blythes’ claims have merit, they are at best a close 

call, necessitating our ruling the court did not abuse its discretion in excluding 

the evidence. See, e.g., Baker, 536 F.3d at 367.

b.

The Blythes also seek to admit communications between Bumbo and CPSC

in 2011 and 2012, and other 2012-recall-related evidence. They assert such 

evidence should be admissible for various reasons. First, relying on Brazos River 

Authority v. GE Ionics, Inc., they claim Rule 407 only prohibits evidence of the 

subsequent measures themselves, and not evidence of the party’s analysis of its 

product. See 469 F.3d 416, 428–31 (5th Cir. 2006). Next, and without citing 

authority supporting their position, the Blythes contend the 2012 recall was 

mandatory and that Rule 407 does not apply to mandatory-recall campaigns. 

Last, they claim this evidence is admissible under the feasibility exception to Rule 

407. See Fed. R. Evid. 407. 

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i.

In Brazos River Authority, our court examined the circumstances under 

which “evidence of post-accident investigations is admissible”. 469 F.3d at 430

(emphasis added). Analyzing each exhibit individually, our court concluded they 

were improperly excluded for different reasons, holding: the first exhibit in 

question was improperly excluded because any references to subsequent remedial 

measures had been redacted; the second, because it only discussed general 

“improvements” with the product’s performance, not safety; and the third, 

because, inter alia, it discussed product “failures” unrelated to the accidents in 

question. Id. at 430–32.

The Blythes maintain Brazos River Authority stands for the proposition 

that any “investigative analysis or pre-remedial measure communications” do not 

fall under Rule 407. This assertion mischaracterizes our precedent. Brazos River 

Authority focuses on the subject matter, underlying purpose, and relevance of 

communications under review to determine whether they constitute subsequent 

remedial measures. See id. Here, incident reports, such as for incidents similar 

to the Blythes’ infant, prompted CPSC’s investigation and communications with 

Bumbo, leading to the 2012 recall. Further, the communications at issue 

discussed the need for, and details of, implementing a safety harness in an effort 

to make the Bumbo safer only in relation to the type of incident in question, not 

the Bumbo generally. Moreover, the 2012-recall-related evidence is not relevant 

to determining whether, for the incident at issue, the Bumbo is defectively 

designed because it only addresses the implementation of a safety harness. 

Bumbo has never claimed it is safe to use a Bumbo on an elevated surface, as it 

was used in this instance—just the opposite. As a result, because the Bumbo was 

being used contrary to its warnings by being placed on an elevated surface, the 

2012-recall-related evidence does not fall within one of the exceptions in Rule 407. 

The court did not abuse its discretion in determining the communications 

constituted subsequent remedial measures.

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ii.

Regarding the Blythes’ contention that mandatory recalls fall outside Rule 

407, they cite no authority supporting this position. Assuming arguendo

mandatory recalls do not fall under Rule 407, CPSC’s official announcement and 

trial testimony by Bumbo’s corporate representative demonstrate the recall was 

voluntary.

iii.

Last, the Blythes contend the evidence is admissible to prove the feasibility 

of installing a safety harness on the Bumbo. Although evidence of a post-incidentdesign change can be admissible to rebut testimony claiming the change is not

feasible, this exception applies only if feasibility is contested. Grenada Steel 

Indus., Inc. v. Ala. Oxygen Co., Inc., 695 F.2d 883, 888 (5th Cir. 1983). Prior to 

trial, Bumbo conceded the feasibility of the alternative design. Consequently, 

feasibility vel non is not at issue.

C.

Finally, the Blythes contend the court erred in denying their post-trial JML 

motion on their design-defect claim. In their opening brief here, they maintain 

they have proven the three elements required (according to the Blythes) for that

claim: an alternative design was economically and technologically feasible; that

design would have prevented the injury without substantially impairing the 

utility of the product; and the defect caused the injuries. 

“We review a district court’s denial of a motion for judgment as a matter of 

law de novo.” Poyner v. Mitsubishi Power Sys. Ams., Inc., 482 F. App’x 887, 888 

(5th Cir. 2012). A court may “resolve the issue against the [movant]” when, inter 

alia, “the court finds that a reasonable jury would not have a legally sufficient 

evidentiary basis to find for the [movant] on that issue”. Fed. R. Civ. P. 50(a)(1). 

To prove a design-defect claim under Tex. Civ. Prac. & Rem. Code 

§ 82.005(a), the plaintiff must show: “(1) there was a safer alternative design; and 

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(2) the defect was a producing cause of the personal injury . . . for which the 

claimant seeks recovery”. The statute defines “safer alternative design” as 

a product design other than the one actually used that in reasonable 

probability: (1) would have prevented or significantly reduced the 

risk of the claimant’s personal injury, property damage, or death 

without substantially impairing the product’s utility; and (2) was 

economically and technologically feasible at the time the product left 

the control of the manufacturer or seller by the application of existing 

or reasonably achievable scientific knowledge.

Tex. Civ. Prac. & Rem. Code § 82.005(b). 

The Blythes’ claim is arguably waived (Bumbo contends it is waived) 

because, in their opening brief, the Blythes did not address the following 

additional required element for a design-defect claim. On a certified question from 

our court, the Texas Supreme Court explained in 1999 that the above-discussed 

statutory elements, although necessary, are not sufficient to prove, as a matter of 

law, a design defect. Hernandez v. Tokai Corp., 2 S.W.3d 251, 256 (Tex. 1999). 

Rather, the plaintiff “must not only meet the proof requirements of the statute 

but must [also] show, under the common law, that the product was defectively 

designed so as to be unreasonably dangerous, taking into consideration the utility 

of the product and the risk involved in its use”. Id. at 257 (emphasis added). 

Regarding unreasonable dangerousness, in denying the Blythes’ JML 

motion during trial, the court stated: “accidents can happen with any product”;

and “a jury could certainly say [the Bumbo at issue is] unreasonably dangerous, 

but I’m not sure how you can say as a matter of law it’s unreasonably [dangerous]”. 

See also Blythe II at 7–9 (noting its initial ruling on this issue at trial). In their 

reply brief, the Blythes assert in very summary fashion that the Bumbo is 

unreasonably dangerous. But, as noted by the district court in denying the 

Blythes’ JML motion during trial, reasonable jurors, on this record, could disagree 

on whether the Bumbo had that characteristic. Accordingly, the Blythes’ posttrial JML motion was properly denied.

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III.

For the foregoing reasons, the judgment is AFFIRMED.

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