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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-10208

JEREMY GREEN,

Plaintiff–Appellant,

v.

SCHUTT SPORTS MANUFACTURING CO., an Illinois Corporation;

SCHUTT DESIGN GROUP, INC., an Illinois Corporation;

SCHUTT SPORTS DISTRIBUTION COMPANY, an Illinois Corporation;

SCHUTT MANUFACTURING COMPANY, an Illinois Corporation,

Defendants–Appellees.

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 5:05-CV-164-C

Before GARZA, STEWART, and OWEN, Circuit Judges.

PER CURIAM:*

Jeremy Green appeals the district court’s entry of a take-nothing judgment

following a jury verdict in favor of defendants Schutt Sports Manufacturing Co.,

Schutt Design Group, Inc., Schutt Sports Distribution Co., and Schutt

Manufacturing Co. (collectively, Schutt). Green contends that the district court

erred in (1) foreclosing his pursuit of a claim for gross negligence, (2) excluding

United States Court of Appeals

Fifth Circuit

F I L E D

March 16, 2010

Charles R. Fulbruge III

Clerk

Case: 07-10208 Document: 00511053557 Page: 1 Date Filed: 03/16/2010
No. 07-10208

See Industrias Magromer Cueros y Pieles S.A. v. La. Bayou Furs Inc., 293 F.3d 912, 1

919 (5th Cir. 2002) (holding that a joint pre-trial order supersedes all other pleadings). 

2

testimony of a witness offered as an expert, (3) excluding certain other proffered

evidence, (4) admitting certain evidence, and (5) instructing the jury. We affirm.

I

At the time of his injury, Jeremy Green was a student and football player

at Levelland High School. During a scrimmage with an opposing team, Green

tackled a player and suffered a severe burst-fracture of one of his neck vertebra

that tragically resulted in quadriplegia.

Green sued Schutt, the manufacturer of the helmet he was wearing at the

time of his injury, asserting various theories of liability. The district court

granted summary judgment in favor of Schutt on Green’s claims of

manufacturing defects, marketing defects, and breach of warranty. Green

abandoned his negligence claim in the joint pre-trial order, and the court 1

subsequently dismissed Green’s claim for punitive damages based on gross

negligence. The only liability theory submitted to the jury was whether the

helmet was defectively designed.

After an eight-day trial, the jury failed to find a design defect. The district

court entered judgment for Schutt and denied Green’s motion for a new trial.

Green has timely appealed, asserting numerous issues.

II

Green contends that the district court erred in dismissing his gross

negligence claim for punitive damages. Green argues in his briefing in this court

that Texas law “permits gross negligence claims in strict liability cases” and

similarly that “a party may pursue gross negligence damages in a strict liability

case.”

We need not decide whether or under what circumstances recovery for

punitive damages is available under Texas law when the only cause of action

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No. 07-10208

 T EX. CIV. PRAC. & REM. CODE ANN. § 41.004(a) (“[E]xemplary damages may be 2

awarded only if damages other than nominal damages are awarded.”).

Travelers Indem. Co. of Ill. v. Fuller, 892 S.W.2d 848, 852 (Tex. 1995). 3

3

seeking recovery of actual damages is a products liability claim asserting a

design defect. A Texas statute precludes an award of exemplary damages unless

actual damages are also awarded. The Supreme Court of Texas has explained 2

that similarly, under the common law, there could be no recovery of exemplary

damages unless there was an entitlement to compensatory relief, recognizing

“the long settled rule that a plaintiff must show himself entitled to compensatory

relief before punitive damages are recoverable.”3

In the present case, the jury failed to find a design defect. It therefore

failed to award any actual damages. Green asserted no other cause of action for

which actual damages could be awarded. He does not challenge the district

court’s ruling that he abandoned his claim for negligence. Accordingly, any

failure to submit whether Schutt was grossly negligent and whether exemplary

damages should be awarded was harmless because there is no basis for the

predicate award of actual damages.

III

At trial Green sought to call as a witness Thomas “Hollywood” Henderson,

a former National Football League linebacker. The district court concluded that

Henderson was not qualified as an expert to opine on helmet safety and design.

Green contends on appeal that this ruling was in error because Schutt’s defense

had two main components: that no helmet could be designed to prevent neck and

spine injuries, as distinguished from head injuries, and the cause of Green’s

catastrophic injury was the manner in which he executed the tackle, with his

head bent or down rather than up. Green contends that Henderson was

qualified to testify about “the value of football helmets,” that his testimony

would be “in many ways more valuable than that provided by any ‘technical

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No. 07-10208

United States v. Ragsdale, 426 F.3d 765, 774 (5th Cir. 2005). 4

Id. (quoting Bocanegra v. Vicmar Servs., Inc., 320 F.3d 581, 584 (5th Cir. 2003)).

5

Id. at 774-75 (quoting Bocanegra, 320 F.3d at 584). 6

Haun v. Ideal Indus., Inc., 81 F.3d 541, 547 (5th Cir. 1996) (quoting Pregeant v. Pan 7

Am. World Airways, Inc., 762 F.2d 1245, 1249 (5th Cir. 1985)) (internal quotation marks

omitted).

4

expert,’” and that “this witness had the appropriate knowledge, skill and

expertise to guide this jury in resolving the question whether plaintiff’s

technique was the cause of his injury.”

The district court did not abuse its discretion in excluding Henderson’s

testimony as an expert regarding “the value of football helmets.” There is no

evidence in this record of the witness’s expertise in this area.

With regard to whether Green’s injury was caused by his tackling

technique, he has not explained on appeal, in even general terms, what

Henderson’s testimony would have been and how it may have assisted the jury.

We therefore have no basis for concluding that any error in excluding Henderson

as a witness was harmful.

IV

The district court denied various motions in limine that Green filed, and

Green contends that these rulings require reversal and a new trial. We review

the district court’s evidentiary rulings for abuse of discretion. “A trial court 4

abuses its discretion when its ruling is based on an erroneous view of the law or

a clearly erroneous assessment of the evidence.” If we find an abuse of 5

discretion in an evidentiary ruling, we review for harmless error and upset the

judgment below only if the evidentiary ruling affected the substantial rights of

the complaining party. Evidentiary rulings are harmless if, in the context of the 6

entire record, they have no effect or “very slight effect” on the jury’s verdict.7

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No. 07-10208

 T EX. CIV. PRAC. & REM. CODE ANN. § 33.003. 8

Gen. Motors Corp. v. Sanchez, 997 S.W.2d 584, 593 (Tex. 1999) (citing TEX. CIV.PRAC.

9

& REM. CODE ANN. §§ 33.011(4), 33.012(a)).

 T EX. CIV. PRAC. & REM. CODE ANN. § 33.001. 10

Sanchez, 997 S.W.2d at 594.

11

5

A

Green asserts that the district court erred by denying six motions in limine

that he filed to exclude any arguments and evidence relating to “comparative

fault, assumption of the risk, competitive sports doctrine, and related negligence

defenses.” Green does not challenge any specific evidence that was admitted at

trial, nor does he cite any part of the trial transcript as an example of evidence

that was admitted over the objections he asserted in his motions in limine.

Even assuming, without deciding, that Green has sufficiently apprised this

court of the evidence he challenges, we cannot conclude that the district court

abused its discretion. Under Texas law, comparative responsibility expressly

applies to defective design tort claims. Under Texas’s statutory scheme, a 8

plaintiff’s recovery in tort is reduced by the proportion he contributed to causing

his own harm through actions that were negligent or otherwise fell below some

legal standard. (If the plaintiff’s responsibility exceeded fifty percent, recovery 9

is barred completely. ) But consumers have no duty to discover or guard 10

against product defects, so a plaintiff’s failure to discover or failure to guard

against a product defect cannot reduce the amount of damages received by the

plaintiff. 

11

The record reflects that Schutt’s arguments regarding Green’s role in the

causation of his injury were limited to contentions that Green tackled improperly

by lowering his head and making first contact with his helmet and that no

helmet could provide protection to the neck under such circumstances. The line

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Jackson v. Axelrad, 221 S.W.3d 650, 654 (Tex. 2007) (citing Farley ex rel. Ballman 12

v. M M Cattle Co., 529 S.W.2d 751, 758 (Tex. 1975)).

E.g., Moore v. Phi Delta Theta Co., 976 S.W.2d 738, 741 (Tex. App.–Houston [1st 13

Dist.] 1998, pet. denied); Hathaway v. Tascosa Country Club, Inc., 846 S.W.2d 614, 616-17

(Tex. App.–Amarillo 1993, no writ); Connell v. Payne, 814 S.W.2d 486, 488-89 (Tex.

App.–Dallas 1991, writ denied).

Moore, 976 S.W.2d at 741 14

Id. at 742 (citing Connell, 814 S.W.2d at 488). 15

6

between permissible and impermissible evidence is thin, if not blurred, when, in

a case such as this, it is permissible to offer evidence pertinent to comparative

responsibility but impermissible to offer evidence that the plaintiff failed to

guard against a product’s limitations. However, we cannot say that the district

court erred in denying Green’s motion in limine pertaining to comparative

responsibility.

The assumption of the risk as a defense to negligence claims under Texas

law has been abrogated and replaced by the comparative responsibility regime

described above. But as discussed above, the evidence offered at trial that 12

might arguably have suggested that Schutt assumed the risks inherent in

playing football was relevant with regard to the design defect claim and the

producing cause of Schutt’s injury. The jury was not instructed that assumption

of the risk is a defense, or even relevant, to Green’s claims.

Some Texas appellate courts have discussed the “competitive sports

doctrine.” Under this doctrine, participants in competitive contact sports may 13

recover damages from injuries caused by other participants only if that other

participant intentionally or recklessly—not merely negligently—caused the

injury. But nonparticipants such as sponsors or those who maintain 14

equipment or facilities do not share in this reduced scope of potential liability.

15

The competitive sports doctrine therefore was not a defense available to Schutt

in this case. Although there were references to the dangerous nature of football

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No. 07-10208

 609 S.W.2d 743 (Tex. 1980). 16

 716 F.2d 344, 349 (5th Cir. 1983). 17

7

in the presence of the jury, including in the closing argument, there was no

discussion of the competitive sports doctrine in the presence of the jury and no

suggestion in the jury instructions that Schutt could only be liable for

intentional or reckless action.

B

Green contends that the district court erred by permitting Schutt to

introduce evidence that Schutt complied with industry standards set by the

National Operating Committee on Standards for Athletic Equipment (NOCSAE)

and that NOCSAE is of the view that no football helmet is capable of protecting

against neck injuries. This evidence was inadmissible, Green asserts, because

compliance with industry custom is not a defense to a products liability design

defect claim based on the Texas Supreme Court’s decision in Boatland of

Houston, Inc. v. Bailey and this court’s decision in Carter v. Massey-Ferguson, 16

Inc.17

Green’s arguments fail for two reasons. First, Richard Stalnacker, Green’s

own expert, relied upon NOCSAE’s testing standards in his expert report and

as reference material when he tested helmets to determine if an alternate design

was feasible. At trial, Green elicited several statements from Stalnacker about

NOCSAE’s history and mission, and about NOCSAE’s testing standards. Green

may not complain about Schutt’s citation to NOCSAE standards when

Stalnacker also cited and relied upon those standards. 

Second, Boatland of Houston does not categorically preclude evidence of

industry standards in product liability cases. Instead, it holds: (a) since a

manufacturer’s level of care is irrelevant in a products liability action, evidence

that the manufacturer complied with industry standards is also irrelevant if it

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No. 07-10208

See Boatland of Houston, Inc., 609 S.W.2d at 748-49; see also Carter, 716 F.2d at 348 18

(holding that “evidence of industry custom is relevant to the ordinary user’s expectations” and

relevant to the risk–utility determination in Texas design defect claims).

8

is introduced for the purpose of showing that the manufacturer took reasonable

care in the design of its product; but (b) evidence of industry standards is

relevant if offered to rebut the plaintiff’s attempt to prove that a safer design

was technologically possible and economically feasible. The record reflects that 18

Schutt’s use of NOCSAE standards falls into the latter category. Schutt relied

upon NOCSAE’s standards to rebut Green’s attempt to prove that a safer

alternative design was feasible. Evidence that NOCSAE has concluded that no

feasible football helmet can protect players’ necks is relevant to the alternative

design element of a design defect case.

Green argues that testimony that the Schutt DNA helmet “complied” with

NOCSAE standards confused the jury by suggesting that the helmet’s head and

brain protection were relevant to the helmet’s ability to protect the neck. But

the record does not support this contention. The transcript pages Green cites

are: (a) testimony from Robert Cantu, a neurosurgeon and vice president of

NOCSAE, that no NOCSAE-approved helmets (which include all helmets in use

in high school football) would have offered any greater protection against this

injury than the Schutt DNA helmet did; (b) testimony from Peter Halstead, a

biomechanical research scientist and technical advisor to NOCSAE, that all

football governing bodies in America (such as the NCAA, the NFL, and the

National Federation of State High Schools) require that helmets used in their

games comply with NOCSAE standards, and that NOCSAE had studied the

feasibility of helmet designs that could protect the neck and found that all

alternative designs were not feasible; and (c) testimony by Kenneth Nimmons,

executive vice president of Schutt, that Schutt helmets comply with NOCSAE

standards. None of this testimony was likely to confuse the jury about the issues

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No. 07-10208

 923 F.2d 416, 418 (5th Cir. 1991). 19

9

in the case. Further, Green was able to cross-examine the witnesses on

NOCSAE’s current and historical statements on neck protection. When crossexamining defense witness Halstead, Green suggested Halstead was “tell[ing]

this jury [that if] this helmet meets NOCSAE, it’s perfectly safe”; Halstead

disagreed: “No, sir, I wouldn’t [say that]. . . . I would tell you that the NOCSAE

standard does not have provisions for testing the helmet’s ability to protect the

neck.” Thus even if there had been initial confusion from the mention of

compliance with NOCSAE standards, Green’s cross-examination allowed him to

clarify the issues and his theory of the case.

Green also argues that the probative value of the evidence on the

NOCSAE standards was “substantially outweighed by the danger of unfair

prejudice, confusion of the issues, or misleading the jury, or by considerations of

undue delay, waste of time, or needless presentation of cumulative evidence,”

citing Federal Rule of Evidence 403. But Green does not offer any explanation

for this argument—there are no citations to case law or the record—and the

record does not support it.

C

Green asserts that the district court erred by denying his motion in limine

seeking to exclude certain types of statistical evidence. Green cites Rodriguez

v. Crown Equipment Corp. for the principle that we require “a showing of 19

substantial similarity before admitting evidence of other incidents” and that

without such a showing, “other incident testimony simply fails to meet the test

of relevancy.” Green argues that defense witness Robert Cantu referred to

statistical data without first establishing that the sources for the data were

substantially similar to the facts of Green’s case. 

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No. 07-10208

 788 F.2d 1070 (5th Cir. 1986). 20

Id. at 1082-83. 21

10

The statistical data Cantu mentioned on the transcript pages Green cites

include: (a) a survey of every catastrophic head and neck injury occurring in

football in the United States each year, and (b) a 1997 NOCSAE report of

catastrophic neck injuries in football occurring from 1977 through 1989 showing

that over 70% of such injuries happened when the tackler’s head was down.

Green argues that there was no evidence about the type of helmet, nature of the

play, or type of injury involved in these other incidents, so there was nothing to

establish the reports’ relevance to Green’s injury. 

Substantial similarity does not require an exact match. Similar to the

situation in Jackson v. Firestone Tire & Rubber Co., on which the Rodriguez 20

court relied, a court would impose an overly “narrow and unrealistic” view of

relevance if it prevented Schutt from introducing any evidence of football 21

injuries except those in which the football helmet, nature of the play, and type

of injury were identical to those in Green’s injury. The data in the reports was

relevant to Schutt’s defense that the method of tackling, rather than the design

of the helmet, was the cause of Green’s injury. And the data pool is substantially

similar to Green’s injury in that it involves the same sport played under the

same or similar rules with similar equipment, resulting in the same rare

injuries. These similarities are substantial enough to make the data relevant

to Schutt’s defense. The district court did not abuse its discretion by allowing

this data.

D

Green asserts that the district court erred by allowing Schutt to elicit

testimony on cross-examination of Brad Thiessen, Green’s football coach, that

the high school continued to use the Schutt DNA helmet after Green’s injury.

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No. 07-10208

11

Green asserts that this statement was used “to prove non-defect” and that it was

irrelevant, improper opinion testimony, and highly prejudicial, and therefore

should have been excluded under Federal Rules of Evidence 401, 402, 403, 701,

and 702. 

Any error was harmless. The testimony at issue was a single question

(“You’re still using this helmet today. Correct?”) and answer (“Yes.”) that took

place in the eight day trial. Schutt never referred to the question again, and

never argued that the school’s continued use of the helmet implied anything

about whether it was defective. The primary sources of evidence for both

Green’s and Schutt’s theories of the helmet’s design defect vel non were experts

who testified about the mechanics of compressive neck injuries and of helmet

design. 

E

Schutt’s expert witnesses Joseph Torg, Robert Cantu, Peter Halstead, and

James McElhaney testified that Green’s tackling technique contributed to his

injury and that football helmets cannot protect the neck. Green contends these

opinions were not based upon scientific principles and methods, and were

unreliable, cumulative, and irrelevant. These witnesses—three medical doctors

and one biomechanical engineer—testified as to the physical effects and

biomechanics of the manner in which Green executed the tackle and their

opinions regarding design of a helmet to prevent injury in these circumstances.

Each had extensive experience studying neck injuries sustained by football

players. Their expert knowledge was sufficiently established to permit such

testimony.

F

The district court declined to exclude a bar graph offered at trial by Schutt

that compared its in-house test scores of its DNA model helmet and the Air

Power helmet, which Green contended was an alternative and safer helmet.

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No. 07-10208

 The parties and witnesses occasionally referred to this entity by slightly different 22

names. The correct name and acronym for this organization appears to be the National

Federation of State High School Associations (NFHS). See http://nfhs.org.

12

Green acknowledges that the graph was produced 30 days before trial during the

exchange of trial exhibits. Green contends, however, that Schutt refused to

produce the underlying data and had refused to produce any testing records for

the Air Power helmet during discovery.

Schutt countered in the district court that Green’s expert had charted

testing of the Air Power helmet in other cases. Schutt additionally argues on

appeal that Green was required, and failed, to object within 14 days after

receiving this trial exhibit, pursuant to Rule 26(a)(3)(C) of the Federal Rules of

Civil Procedure.

We review the district court’s ruling for an abuse of discretion. Based on

the record before us and the conflicting evidence of prejudice, we cannot say that

the district court abused its discretion. 

G

The district court overruled Green’s objection to evidence that both

NOCSAE and the National Football Federation (NFHS or Federation) have 22

stated in published literature that football helmets cannot protect against neck

injuries. 

Green cites no transcript pages for these alleged evidentiary errors. In its

appellate brief, Schutt cites a portion of the direct examination testimony of

Artemio Ontiveros, an assistant coach of Green’s football team. Schutt referred

to and subsequently admitted the NFHS rulebook that governed the scrimmage

game. Green objected on the basis of relevance (with no further detail) and was

overruled. However, Green now contends on appeal that the NOCSAE and

NFHS evidence had no scientific basis and was hearsay. Green’s objection based

on relevance did not preserve these contentions for appeal.

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No. 07-10208

13

V

Green challenges several rulings of the district court excluding evidence

he offered.

A

The district court excluded a 1973 version of NOCSAE’s standards.

According to the document’s preamble, NOCSAE sought to develop a footballhelmet-test standard that would “improve upon the protection afforded by

helmets to prevent both head and neck injuries.” Schutt moved the district court

to exclude this evidence under Federal Rule of Evidence 403, arguing that it was

likely to confuse the jury since the language at issue provides only an aspiration

and is not a scientific finding. Schutt further contended that more recent

literature, as well as NOCSAE’s current standard, rejects this aspiration. The

district court granted Schutt’s motion. Given the document’s aspirational tone

and age, the more recent medical literature, and NOCSAE’s change in position,

the district court did not abuse its discretion.

B

The district court excluded a design safety memorandum that had been

prepared for Bike Athletic Company in 1985. The document contains a list of 14

broad guidelines for designing safe athletic equipment, such as “exceed all

standards” and “consider safety throughout the design.” Although the document

was not prepared for Schutt, Schutt’s director of research for the DNA helmet

was an employee at Bike Athletic Company in 1985 and received the

memorandum there. Green argued that the document put this person on notice

of certain safety requirements for helmet design. Schutt contended that the

document was irrelevant and moved the court to exclude it under Rule 402. The

district court granted Schutt’s motion. “In cases involving strict liability for

defective design, liability is determined by the product’s defective

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No. 07-10208

Boatland of Houston, Inc. v. Bailey, 609 S.W.2d 743, 749 (Tex. 1980). 23

14

condition . . . .” Green’s cause of action was based on strict liability for 23

defective design. Although the document at issue may have shown “notice” to

Schutt of foreseeable risks, as Green argues, it does not tend to establish that a

defect existed. The district court did not abuse its discretion.

C

Green also claims that the district court erred in preventing him from

admitting a nine-page published paper on helmet safety. The article, which was

published in a scientific journal in 1978, explains the methodology and results

of a helmet-safety test. It concludes that helmets can reduce the compressive

force to the cervical spine, and that air-filled helmets provide better neck

protection than padded helmets. Green’s expert described the paper in great

detail. He explained how the helmet-safety test was conducted and conveyed the

paper’s conclusions. He also quoted directly from the article. When Green

attempted to admit the paper into evidence, Schutt objected that the article was

irrelevant because it was nearly 30 years old, and that it was hearsay. The

judge sustained these objections. Even if the district court erred in excluding the

article, which we do not resolve, the error did not harm Green. Green’s expert

testified extensively about the article and conveyed to the jury all helpful and

relevant information contained in it. 

D

Green received medical bills totaling $831,254.74, but Medicaid and other

insurance providers settled the bills for $448,154.63. The district court ruled

before trial that Green could only seek recovery for the $448,154.63 that was

actually paid. The district court prevented Green from presenting evidence on

the remainder of the amount initially billed. Green claims that this was error.

Green’s complaint relates only to damages; because the jury failed to find in

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No. 07-10208

See FED. R. APP. P. 28(a). 24

See Pelt v. U.S. Bank Trust Nat’l Ass’n, 359 F.3d 764, 766-67 (5th Cir. 2004) (quoting

25

Johnson v. Sawyer, 120 F.3d 1307, 1315 (5th Cir. 1997) (internal quotation marks omitted)).

Id.

26

15

Green’s favor on any theory of liability, and we are not disturbing any of the

liability determinations, we do not consider this contention.

E

In one sentence, Green asserts that the district court erred in denying his

motion to strike a brief that Schutt filed prior to trial. Green has waived this

argument by inadequately briefing it. But even if Green had adequately 24

briefed this argument, permitting the filing of this pretrial brief did not

prejudice Green.

VI

Green challenges the charge and instructions to the jury. He must show

that the “charge as a whole creates substantial and ineradicable doubt whether

the jury has been properly guided in its deliberations.” If the instructions 25

contained an error, we still will not reverse if the record, taken as a whole,

reflects that the instruction could not have changed the case’s outcome.26

A

On appeal, Green contends that the district court “improperly commingled

negligence principles with strict liability design defect principles” and “adopted

more stringent standards than those required for strict liability claims under

Texas law.” Green’s brief contains nothing more than these two statements. He

cites no authorities, nor does he discuss the charge. Green has waived any

argument by failing to brief it adequately.

He additionally contends that it was error to submit comparative fault to

the jury and to refuse to instruct the jury that Green had no duty to discover the

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No. 07-10208

16

defective condition of the helmet. Here again, Green cites to no authorities other

than the Texas Pattern Jury Charge. This is insufficient.

B

Schutt initially intended to contend at trial that Green assumed the risk

of his injury. Green argues that the court erred in allowing Schutt to introduce

evidence related to this defense and then failing to instruct the jury not to

consider this evidence after Schutt abandoned its defense during the charge

conference. Green cites no case law or other authorities, and this point has not

been adequately presented.

* * *

For the foregoing reasons, we AFFIRM the judgment of the district court.

Case: 07-10208 Document: 00511053557 Page: 16 Date Filed: 03/16/2010