* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata and coll ateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### JUL 30 1997 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

WILLIAM M. ENGLISH,

Plaintiff-Appellant,

v. SUZUKI MOTOR COMPANY, LTD., a Japanese corporation; AMERICAN SUZUKI MOTOR CORPORATION, a California corporation,

Defendants-Appellees. No. 95-4177 (District of Utah) (D.C. No. 92-CV-195-G)

ORDER AND JUDGMENT *

Before EBEL , HOLLOWAY, and MURPHY , Circuit Judges.

William M. English was seriously injured in an acci dent while riding an allterrain vehicle (“ATV”) manufactured by Suzuki Moto r Co. (“Suzuki”). English brought this action against Suzuki for strict liabi lity and negligence for defective design and manufacture; strict liability for failur e-to-warn and for product1 He has abandoned on appeal his breach of warranty c laim and a claim of

error with respect to an evidentiary ruling regardi ng Suzuki’s evidence of a comparative risk analysis. -2- misrepresentation; breach of warranty; and punitive damages. English appeals following an adverse jury verdict. 1 Specifically, English challenges the following actions of the district court: 1) ruling that Engl ish must waive his failure-to-warn claims in order to preclude the admission of eviden ce of his consumption of alcohol before the accident; 2) granting summary ju dgment for Suzuki on English’s alternative safety design claims; 3) fail ing to conduct specific jury voir dire concerning tort reform; 4) admitting into evidence a Consumer Product Safety Commission (“CPSC”) report regarding ATV saf ety; and 5) dismissing English’s misrepresentation claims. This court exe rcises jurisdiction pursuant to 28 U.S.C. § 1291 and AFFIRMS the judgment entered i n favor of Suzuki.

I. FACTUAL BACKGROUND On sand dunes near St. Anthony, Idaho, English suff ered personal injuries in an ATV accident. English was an experienced ATVrider. While his experience included riding in sand dunes, English h ad never before ridden in the sand dunes near St. Anthony, Idaho. At the time of the accident, English was riding a S uzuki LT500R fourwheel ATV (“LT500R”). Earlier that day, English ha d consumed food and a-3-

drink containing one ounce of rum. English rode th e LT500R off a sand dune, and the LT500R crashed into the ground beyond the b ase of the dune. The impact catapulted English forward over the handlebars onto the ground.

II. ANALYSIS A. Failure-to-Warn Claims English claims the district court erred by ruling t hat in order to preclude the admission of evidence of English’s consumption of o ne alcoholic drink before the accident, he must waive all of his failure-to-warn claims. English raised the issue in a motion in limine originally submitted to the magistrate judge. The district court ruled from the bench that the magistrate judg e’s order was “somewhat ambiguous” as to the exclusion of evidence of alcoh ol use and which warning claims English must waive in exchange. We review t his evidentiary ruling for an abuse of discretion. See United States v. Tome , 61 F.3d 1446, 1449 (10th Cir. 1995). To understand the district court’s interpretation o f the magistrate’s order we must examine the full proceedings before the mag istrate judge. In its argument on the motion in limine , Suzuki claimed that English’s failure-to-warn claims rendered evidence of English’s disregard of alcohol warnings relevant to show English would not have obeyed any warnings hadthey been given. The-4-

magistrate judge orally agreed, and English volunte ered to dismiss his warnings claims in order to exclude evidence of his alcohol consumption before the accident. In his subsequent order dated April 17, 1995, howev er, the magistrate was less clear about whether the agreement would apply to allof English’s failure-towarn claims or only to alcohol-use warnings. Altho ugh the magistrate discussed the relevance of evidence of English’s alcohol cons umption, the magistrate also discussed the potential prejudice such evidence maycause. In addition, the magistrate judge noted that, in any event, the issu e was moot because English “indicated a willingness to withdraw any claim as t o the insufficiency of the warnings.” R. at 89. The magistrate finally order ed that the evidence be excluded “unless defendant is able to produce addit ional evidence to show alcohol impairment of plaintiff at the time of the accidentand further upon condition that the plaintiff withdraws his claim of inadequate warnings by defendants of the dangers of driving an ATV and using alcohol.” Id. at 10. Interpreting the magistrate’s order, the districtcourt ruled from the bench: If you don’t want alcohol you don’t have warnings. . . . I will rule that there is no clearly erroneous aspect of Judge Boyce’s order, that he has properly weighed the balance of prejudice ag ainst relevance under 403 and I read this as an order based upon al l of it plus the discussion here to impose a condition of the elimin ation of inadequate warnings by defendants in all particular s as a condition to the ruling that no alcohol evidence be presented.2 English argues that in light of the district court’ s failure to find the

magistrate’s opinion clearly erroneous before modif ying or overturning it, we should not apply an abuse of discretion standard. English, however, does not cite any authority or make a concrete suggestion for an alternative standard of review. -5- R. at 613. English argues that the magistrate judg e’s order was not ambiguous and therefore the district court was required to fi nd the order clearly erroneous before “modifying” or overturning it. 2 English further argues that the district court erroneously determined that in order to exclu de evidence of his alcohol consumption, English must waive all his failure-to- warn claims. Although the language quoted from the magistrate’s order is clear at first glance, when the order is read as a whole and in co njunction with transcripts of the exchange between the magistrate judge and the p arties at oral argument, it becomes less clear whether English was required to waive all of his warnings claims or only the alcohol warnings claims. Thus, because the district court correctly found the ruling ambiguous and interprete d the order to avoid the necessity of a finding of clear error, the districtcourt did not abuse its discretion. Cf. Truskoski v. ESPN, Inc. , 60 F.3d 74, 77 (2d Cir. 1995) (stating district c ourt’s interpretation of its own ambiguous order is review ed for abuse of discretion). Furthermore, we find no abuse of discretion in the district court’s determination that evidence of English’s disregard of alcohol warnings was relevant to show English would not have followed any of Suzuki’s warnings.-6-

B. Alternative Safety Design Claims English claims the district court erred when it granted summary judgment on his strict liability and negligence claims premi sed on alternative safety design. English also appears to appeal the choice of law ap plied by the district court. Before the magistrate judge, Suzuki asserted Englis h failed to make any showing that a feasible, alternative design existed. The m agistrate judge recommended that the district court grant summary judgment. Th e district court adopted this recommendation, and this court reviews the districtcourt’s application of law de

novo . See Frandsen v. Westinghouse Corp. , 46 F.3d 975, 977 (10th Cir. 1995). This court must first address the choice of law iss ue. English appears to claim that the substantive law of California or Ida ho, rather than that of Utah, should apply to the alternative design claims of strict liability and negligence. English’s theory for application of California law is the placement of the LT500R into the stream of commerce in California. His alt ernative theory that Idaho law should apply is premised on English’s injuries occu rring in Idaho. In a federal court diversity action, the forum stat e’s choice of law standards
govern. See Shearson Lehman Bros., Inc. v. M & L Investments , 10 F.3d 1510, 1514 (10th Cir. 1993). Utah courts have adopted th e “most significant relationship” test. See Rocky Mtn. Helicopters, Inc. v. Bell Helicopter Textron,3 English argues that the conduct causing the injury took place in California,

where the LT500R was placed in to the stream of com merce and where the marketing, advertising, and investigation decisions were made. Even if English’s assertion is correct, one factor alone does not dic tate a particular choice of law. Rather, this court must weigh each of the four fact ors. See Rocky Mtn. Helicopters, Inc. v. Bell Helicopter Textron, Inc. , 24 F.3d 125, 128-29 (10th Cir. 1994). -7- Inc. , 24 F.3d 125, 128 (10th Cir. 1994). The factors acourt should consider in determining which state has the most significant re lationship are: (1) the place where the injury occurred; (2) the pl ace where the conduct causing the injury occurred; (3) the domici le, residence, nationality, place of incorporation and place of bu siness of the parties; and (4) the place where the relationship, if any, between the parties is centered. Id. In light of these four factors, the district court correctly determined that Utah had the most significant relationship with thi s cause of action. Although the injury occurred in Idaho, this factor alone is not determinative, particularly when the relationship between the parties is centered el sewhere. See Mountain Fuel Supply Co. v. Reliance Ins. Co. , 933 F.2d 882, 888 (10th Cir. 1991) (noting Utah has abandoned lex locirule in tort actions). In addition, any negligenc e causing the injury would have occurred not in Idaho, but inJapan, where the product was designed and manufactured. See Rocky Mtn. , 24 F.3d at 128-29 (holding that negligence occurred where product manufactured). 3-8-

The third and fourth factors weigh heavily in favorof the application of Utah substantive law. English is domiciled in Utah ; Suzuki does business in Utah; English purchased the LT500R from a Utah deal ership. The district court thus correctly resolved to apply Utah law to Englis h’s substantive claims. The applicable Utah law is articulated in Allen v. Minnstar, Inc. , a diversity case. 8 F.3d 1470 (10th Cir. 1993). In Allen , the plaintiff brought a strict liability action against a boat and engine manufact urer, claiming the engine was “defectively designed because it was not equipped w ith a propeller guard to prevent injuries resulting from physical contact wi th the propeller.” Allen , 8 F.3d at 1472. Here, English claims that the LT500R was defectively designed because Suzuki failed to equip it with a roll over protecti on system (“ROPS”) which would presumably prevent physical injuries caused b y a rollover.
In Allen , this court determined that under Utah law the pla intiff bears “the burden of showing that an alternative, safer design , practicable under the circumstances, was available at the time” the produ ct was sold. Id. at 1479. Applying Allen , the magistrate judge determined that English had not presented any evidence of an alternative feasible design “cap able of being adapted in the ATV market.” R. at 542. Specifically, the distric t court determined there was no showing that a ROPS is state-of-the-art or practica lly feasible equipment for
ATV’s. See Fibreboard Corp. v. Fenton , 845 P.2d 1168, 1174 (Colo. 1993)-9-

(recognizing whether state-of-the-art, feasibile al ternative design exists as factor in defective design cases). Further, the magistrat e determined that English’s expert witness only presented speculative and theor etical evidence, not evidence that a ROPS is capable of being adapted for ATV’s. The district court properly applied Allen in determining that English failed to come forward with alternative design feasibility evidence to support his strict l iability ROPS claims. English then argues that the district court erroneo usly applied the strict liability standard to his negligence claim. In his report and recommendation which the district court adopted, however, the magi strate judge expressly stated that the applicable standard was reasonable care: t he negligence standard. See Williams v. Melby , 699 P.2d 723, 726 (Utah 1985); Maack v. Resource Design & Constr., Inc. , 875 P.2d 570, 580 (Utah Ct. App. 1994). The magi strate judge’s report states: “There is no evidence that defendant s did not use reasonable care in the decision not to install a ROPS system.” R. at 542; see Burnette v. Dow Chem.
Co. , 849 F.2d 1269, 1273 (10th Cir. 1988) (holding that to overcome summary judgment motion, plaintiff must present evidence onwhich jury could reasonably find for plaintiff). Thus, the district court did not err in adopting the recommendation of the magistrate with respect to En glish’s negligent design claim.-10-

C. Voir Dire English next argues the district court erred in ref using to ask the venire panel specific questions concerning tort reform. T his court reviews the voir dire process for an abuse of discretion. See United States v. Gillis , 942 F.2d 707, 709- 10 (10th Cir. 1991) (“Reversal is required if the s pecific circumstances suggest a significant risk of prejudice and if examination oradmonition of jurors fails to negate that inference.”). Before trial, English submitted to the court propos ed voir dire questions concerning tort reform. The district court did not , however, propound any of the stipulated tort reform questions. English cites Ut ah case law in support of his position that a plaintiff is entitled to have tort- reform questions posited to the jury. See Barrett v. Peterson , 868 P.2d 96, 101 (Utah Ct. App. 1993) (“In light of the pervasive dissemination of tort-reform informat ion, and the corresponding potential for general exposure to such information by potential jurors, a plaintiff is entitled to know which potential jurors, if any, have been so exposed.”). The court addressed this specific issue in Smith v. Vicorp, Inc. , 107 F.3d 816 (10th Cir. 1997). In Smith , the plaintiff also referred this court to the Barrett case to support her argument that the district court abused its discretion by failing to propound specific tort reform questions. See Smith , 107 F.3d at 817. This court, however, held that federal district courts a re governed by Fed. R. Civ. P.4 Fed. R. Civ. P. 47(a) provides:

The court may permit the parties or their attorneys to conduct the examination of prospective jurors or may itself con duct the examination. In the latter event, the court shall permit the parties or their attorneys to supplement the examination by su ch further inquiry as it deems proper or shall itself submit to the pr ospective jurors such additional questions of the parties or their attorn eys as it deems proper.

5 The court asked panel members: Is there anybody in the room that would have diffic ulty following the law in the jury instructions given bythe judge and would agree to do that?

. . . . . . . [I]n your mind is there any reason that you k now of that would make it hard for you to be fair and impartial if you were selected to be on this jury? Is there any reason why if you were one of the part ies in this case you would feel that you’d be uncomfortable with a person sitting on the jury who has your present mental state of things? Does anybody feel that way, that there’s some reaso n whether expressed or unexpressed, that you ought not to siton the jury? R. at 700, 719-20. In addition to those questions, the judge admonished the potential jurors: -11- 47(a), 4 rather than state voir dire requirements. See id. at 817-18

. The court held: “Utah law, requiring tort reform voir dire a nd specifically prescribing the contours of such, conflicts with the broad discreti on vested in federal judges to control the scope and extent of voir dire.” Id. at 818. Thus, absent any independent abuse of discretion in propounding its own venire questions under Fed. R. Civ. P. 47(a), this court will uphold the m anner in which the district court conducted voir dire . In this instance, there is nothing in the distri ct court’s questioning which constituted an abuse of discretio n. 5You would be under a duty to follow that law and th en to

apply the facts that you find to the law that is gi ven, even if you don’t agree with the law. Sometimes people don’t a gree with the law and think, well, that’s a ridiculous thing, or I do n’t agree with it and so they say they wouldn’t follow it. There’s ways of changing the law . . . but the jury room is not one of the place s to do it. You can write to your congressman or do something with the legislature, but you can’t change the law in a jury room. R. at 700. As in Smith , “[t]his line of questions was adequate to reveal the seeds of potential tort reform bias and to alert plaintif f’s counsel to the possible need to exercise a preemptory challenge.” Smith v. Vicorp, Inc. , 107 F.3d 816, 818 (10th Cir. 1997).

6 In his brief, English states: In an unreported exchange on the eve of trial, the District Court determined that the CPSC findings and relatedproceedings were relevant and that Suzuki would be allowed to p resent evidence -12- D. CPSC Report Next, English argues that the district court committed reversible error by admitting into evidence the findings of a CPSC repo rt regarding ATV safety. English presented a motion in limine to exclude the CPSC investigation findings. The magistrate ruled: The motion to exclude conclusions from the investig ation . . . is GRANTED subject to the following: the CPSC findings , as defined in Rule 803 of the Federal Rules of Evidence are ad missible, subject to the trial judge’s ruling on relevance of the ind ividual findings. R. at 549. On the eve of trial, according to Engli sh’s Opening Brief, the district court determined that the CPSC findings were relevant and thus admissible. English admits that this ruling was unreported. 6 He failed, however, to invoke theregarding such things. Suzuki’s counsel then spoke about such

things, with the help of visual aids . . . in his o pening statement, and Suzuki’s primary liability expert, Dr. Roger McCarthy, addressed such things in his testimony . . . . Aplt. Op. Br. at 8 n. 2. As support for the occurr ence of the ruling, English points out that Suzuki has not contested his refere nce to the ruling. -13- procedure under Fed. R. App. P. 10(c) to provide th is court with an acceptable substitute for a transcript of a hearing which was unreported. Fed. R. App. P. 10(c) provides: If no report of the evidence or proceedings at a he aring or trial was made, or if a transcript is unavailable, the appell ant may prepare a statement of the evidence or proceedings from the b est available means, including the appellant’s recollection. The statement shall be served on the appellee, who may serve objections orproposed amendments thereto within 10 days after service. T hereupon the statement and any objections or proposed amendments shall be submitted to the district court for settlement and approval and as settled and approved shall be included by the clerkof the district court in the record on appeal. English has neither created such a statement, nor s ubmitted one to Suzuki or the district court for approval. We review the district court’s evidentiary rulings for an abuse of discretion. See Kloepfer v. Honda Motor Co., Ltd. , 898 F.2d 1452, 1456-58 (10th Cir. 1990) (holding it was not abuse of discretion for distric t court to exclude evidence of government reports about ATV safety). English reli es heavily on Kloepferto argue that this court should find an abuse of discr etion because the district court held the CPSC findings admissible. We note, howeve r, that Kloepferis not a per-14-

se rule of law that all government reports which do n ot focus on the specific ATV but on all ATV’s generally are impermissibly broad. Rather, Kloepferstands for the proposition that based on the particularities o f that case, it was not an abuse of discretion for the district court judge to deter mine the government reports were too broad to be admitted. This court stated, with respect to evidentiary rulings, the district court is “the first and best judge.” Kloepfer , 898 F.2d at 1458. Moreover, a court has abused its discretion with re spect to an evidentiary ruling only when it makes “‘an arbitrary, capricious, whim sical, or manifestly unreasonable judgment.’” United States v. Hernandez-Herrera , 952 F.2d 342, 343 (10th Cir. 1991) (quoting United States v. Cardenas , 864 F.2d 1528, 1530 (10th Cir. 1989)). Because there exists no report, transcript, or Rule 10(c) statement of the district court’s ruling, we cannot determine whethe r its decision was an abuse of discretion. In Sil-Flo, Inc. v. SFHC, Inc. , the appellants similarly claimed the district court improperly denied their motion in limine to exclude expert testimony. 917 F.2d 1507, 1517 (10th Cir. 1990). The appellants admitted that “there was no reporter present at the time and no t ranscript of [the court’s] ruling exists.” Id. Referencing Fed. R. App. P. 10(c), this court hel d: “The defendants have not submitted [a statement of the proceedings before the trial court]. Although this procedure is not mandatory, without arecord of the proceedings-15-

below we have no option but to defer to the distric t court’s ruling during trial . . . .” Id. See also United States v. Olivo , 69 F.3d 1057, 1066 (10th Cir. 1995) (deferring to district court’s evidentiary ru ling because “[a]ny discussion of a claim in the absence of the appropriate portions of the transcript would be mere speculation”)

. Because English has failed to even attempt to creat e a statement under Fed. R. App. P. 10(c) of the proceedings in which the di strict court ruled the CPSC findings admissible, we must defer to the district court’s decision. See Sil-Flo , 917 F.2d at 1517; United States v. Vasquez , 985 F.2d 491, 495 (10th Cir. 1993) (“In the absence of a transcript or a statement of the parties in lieu of a transcript (Fed. R. App. P. 10(c)), the Court of Appeals will not review an issue, even for plain error.”) (citing United States v. Mobile Materials, Inc. , 881 F.2d 866, 878 (10th Cir. 1989)).
E. Misrepresentation Claims English challenges the adverse summary judgment on his misrepresentation claims, which were premised on Restatement (Second) of Torts § 402B. English claimed Suzuki made the following affirmative misre presentations: that the LT500R was safe if the operator did nothing wrong; that the LT500R was safe for use in sand; and that the LT500R did not require a ROPS to protect its operator from harm in rollover accidents. English claimed t hat Suzuki made further-16-

misrepresentations by implying in advertisements an d other representations that “particular dangers, including the danger of being severely injured when riding in a sand dune environment, could occur only where the re is operator error.” In his report and recommendation, the magistrate ju dge recommended granting Suzuki’s motion on all of the misrepresent ation claims except the alleged misrepresentation that the LT500R was safe for use in sand dunes. The magistrate stated: “It appears that plaintiff had a n extremely difficult time saying anything was wrong except that Suzuki did not tell him an accident could happen. This is at best a failure to warn claim and not wit hin Section 402B. It is also not a misrepresentation of a material fact.” R. at 528 . The magistrate found that there was a material issue of fact as to whether th e LT500R could be operated safely in sand dunes, and thus recommended denying summary judgment on that claim. The district court upheld the magistrate’s partial summary judgment recommendation. At the conclusion of trial, the di strict court granted judgment as a matter of law in favor of Suzuki on the remaining misrepresentation claim. We review a grant of judgment as a matter of law de novo

. See Sheets v. Salt Lake County, 45 F.3d 1383, 1387 (10th Cir. 1995). Judgment as a matter of law is proper if the evidence, viewed in the light most favorable to the nonmoving party, presents no genuine issue as to any m aterial fact, and the moving party should prevail as a matter of law. See Frandsen v. Westinghouse Corp. , 46-17-

F.3d 975, 977 (10th Cir. 1995); Pendleton v. Conoco Inc. , 23 F.3d 281, 286 (10th Cir. 1994) (stating “standard for . . . judgment as a matter of law . . . is identical to the standard for summary judgment . . . .”). English’s misrepresentation claims were based on Re statement (Second) of Torts § 402B which states: One engaged in the business of selling chattels who , by advertising, labels, or otherwise, makes to the public a misrepr esentation of a material fact concerning the character or quality o f a chattel sold by him is subject to liability for physical harm to a consumer of the chattel caused by justified reliance upon the misre presentation, even though (a) it is not made fraudulently or negligently; and (b) the consumer has not bought the chattel from orentered into any contractual relation with the seller. In support of his claims of misrepresentation, Engl ish presented his own testimony and that of an expert witness. English h imself testified that he had operated the LT500R for more than two years in sandand had been satisfied with its performance. English’s own expert witness test ified that the LT500R could be operated “successfully” in sand. There was no contradictory evidence and thus no evidence upon which a reasonable jury could have fo und that the LT500R could not be safely operated in sand. With respect to English’s other affirmative misrepr esentation claims, English admitted in deposition testimony that Suzuk i did not affirmatively tell him that the LT500R was safe if he did nothing wron g or that a ROPS was not7 English stated: “I don’t feel that the information was false.” R. at 528.

With respect to videos which depicted people enjoyi ng their rides on the LT500R, rather than crashing and injuring themselves, Engli sh stated: “[A]gain, I would say I didn’t see anything that was false that I cou ld think of . . . . [they] show you the fun side of riding an ATV.” Id. -18- necessary. 7Furthermore, as the magistrate judge concluded, d epicting or billing an item as fun and enjoyable, rather than explainin g or showing possible accidents or injuries, does not constitute a misrepresentatio n of the character or quality of the product. See Restatement (Second) of Torts § 402B cmt. g; Adkins v. Ford
Motor Co ., 446 F.2d 1105, 1108 (6th Cir. 1971) (stating mis representation requires reliance on “a particular and specific statement concerning quality or fitness as the foundation for an action of misrepre sentation under Section 402B”). Additionally, these claims appear to be claims of m isrepresentation by omission, rather than affirmative misrepresentationclaims. All of English’s misrepresentation by omission claims smack of an attempt to reinstate the failureto-warn claims which, as discussed above, were waiv ed. English argues that “Suzuki . . . failed to disclose the fact that a ri der such as Mr. English could end up as he did even if he was doing nothing wrong.” Aplt. Op. Br. at 46. This claim is essentially a failure-to-warn claim, not amisrepresentation claim for purposes of Restatement (Second) § 402B. Section 4 02B addresses only an affirmative representation of material fact regardi ng the character or quality of the product and requires the plaintiff’s reliance on th e representations. See-19-

Restatement (Second) Torts § 402B cmts .; Rehler v. Beech Aircraft Corp. , 777 F.2d 1072, 1077 n. 8 (5th Cir. 1985) (noting that u nder Texas law, § 402B covers only affirmative or express misrepresentations). T he district court thus did not err in determining Suzuki was entitled to judgment as amatter of law with respect to English’s misrepresentation claims.

III. CONCLUSION For the reasons set forth above, we AFFIRM the judgment of the district

court. ENTERED FOR THE COURT,

Michael R. Murphy Circuit Judge