*This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata and collateral estoppel. The court

generally disfavors the citation of orders and judgments; nevertheless, an order

and judgment may be cited under the terms and conditions 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 accident while riding an allterrain vehicle (“ATV”) manufactured by Suzuki Motor Co. (“Suzuki”). English

brought this action against Suzuki for strict liability and negligence for defective

design and manufacture; strict liability for failure-to-warn and for product
1He has abandoned on appeal his breach of warranty claim and a claim of

error with respect to an evidentiary ruling regarding 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 English must waive his failure-to-warn

claims in order to preclude the admission of evidence of his consumption of

alcohol before the accident; 2) granting summary judgment for Suzuki on

English’s alternative safety design claims; 3) failing to conduct specific jury voir

dire concerning tort reform; 4) admitting into evidence a Consumer Product

Safety Commission (“CPSC”) report regarding ATV safety; and 5) dismissing

English’s misrepresentation claims. This court exercises jurisdiction pursuant to

28 U.S.C. § 1291 and AFFIRMS the judgment entered in favor of Suzuki.

I. FACTUAL BACKGROUND

On sand dunes near St. Anthony, Idaho, English suffered personal injuries

in an ATV accident. English was an experienced ATV rider. While his

experience included riding in sand dunes, English had never before ridden in the

sand dunes near St. Anthony, Idaho.

At the time of the accident, English was riding a Suzuki LT500R fourwheel ATV (“LT500R”). Earlier that day, English had consumed food and a
-3-

drink containing one ounce of rum. English rode the LT500R off a sand dune,

and the LT500R crashed into the ground beyond the base 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 that in order to preclude the

admission of evidence of English’s consumption of one 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 judge’s order was “somewhat

ambiguous” as to the exclusion of evidence of alcohol use and which warning

claims English must waive in exchange. We review this 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 of the magistrate’s order

we must examine the full proceedings before the magistrate 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 had they been given. The
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magistrate judge orally agreed, and English volunteered 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, however, the magistrate was

less clear about whether the agreement would apply to all of English’s failure-towarn claims or only to alcohol-use warnings. Although the magistrate discussed

the relevance of evidence of English’s alcohol consumption, the magistrate also

discussed the potential prejudice such evidence may cause. In addition, the

magistrate judge noted that, in any event, the issue was moot because English

“indicated a willingness to withdraw any claim as to the insufficiency of the

warnings.” R. at 89. The magistrate finally ordered that the evidence be

excluded “unless defendant is able to produce additional evidence to show alcohol

impairment of plaintiff at the time of the accident and 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 district court 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 against relevance

under 403 and I read this as an order based upon all of it plus the

discussion here to impose a condition of the elimination of

inadequate warnings by defendants in all particulars as a condition to

the ruling that no alcohol evidence be presented.
2English argues that in light of the district court’s failure to find the

magistrate’s opinion clearly erroneous before modifying 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 judge’s order was not ambiguous

and therefore the district court was required to find the order clearly erroneous

before “modifying” or overturning it.2

 English further argues that the district

court erroneously determined that in order to exclude 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 conjunction with transcripts of

the exchange between the magistrate judge and the parties 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 interpreted the order to avoid the

necessity of a finding of clear error, the district court did not abuse its discretion. 

Cf. Truskoski v. ESPN, Inc., 60 F.3d 74, 77 (2d Cir. 1995) (stating district court’s

interpretation of its own ambiguous order is reviewed 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 premised on alternative safety design. 

English also appears to appeal the choice of law applied by the district court. 

Before the magistrate judge, Suzuki asserted English failed to make any showing

that a feasible, alternative design existed. The magistrate judge recommended

that the district court grant summary judgment. The district court adopted this

recommendation, and this court reviews the district court’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 issue. English appears to

claim that the substantive law of California or Idaho, 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 alternative theory that Idaho law

should apply is premised on English’s injuries occurring in Idaho.

In a federal court diversity action, the forum state’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 the “most significant

relationship” test. See Rocky Mtn. Helicopters, Inc. v. Bell Helicopter Textron,
3English argues that the conduct causing the injury took place in California,

where the LT500R was placed in to the stream of commerce and where the

marketing, advertising, and investigation decisions were made. Even if English’s

assertion is correct, one factor alone does not dictate a particular choice of law. 

Rather, this court must weigh each of the four factors. 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 a court should consider in

determining which state has the most significant relationship are: 

(1) the place where the injury occurred; (2) the place where the

conduct causing the injury occurred; (3) the domicile, residence,

nationality, place of incorporation and place of business 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 this cause of action. Although the

injury occurred in Idaho, this factor alone is not determinative, particularly when

the relationship between the parties is centered elsewhere. See Mountain Fuel

Supply Co. v. Reliance Ins. Co., 933 F.2d 882, 888 (10th Cir. 1991) (noting Utah

has abandoned lex loci rule in tort actions). In addition, any negligence causing

the injury would have occurred not in Idaho, but in Japan, 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 favor of the application of

Utah substantive law. English is domiciled in Utah; Suzuki does business in

Utah; English purchased the LT500R from a Utah dealership. The district court

thus correctly resolved to apply Utah law to English’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 manufacturer, claiming the engine was

“defectively designed because it was not equipped with a propeller guard to

prevent injuries resulting from physical contact with 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 protection system (“ROPS”) which

would presumably prevent physical injuries caused by a rollover.

In Allen, this court determined that under Utah law the plaintiff bears “the

burden of showing that an alternative, safer design, practicable under the

circumstances, was available at the time” the product was sold. Id. at 1479. 

Applying Allen, the magistrate judge determined that English had not presented

any evidence of an alternative feasible design “capable of being adapted in the

ATV market.” R. at 542. Specifically, the district court determined there was no

showing that a ROPS is state-of-the-art or practically 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 alternative design exists as factor

in defective design cases). Further, the magistrate determined that English’s

expert witness only presented speculative and theoretical 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 liability ROPS claims.

English then argues that the district court erroneously applied the strict

liability standard to his negligence claim. In his report and recommendation

which the district court adopted, however, the magistrate judge expressly stated

that the applicable standard was reasonable care: the 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 magistrate judge’s

report states: “There is no evidence that defendants 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 on which jury could reasonably

find for plaintiff). Thus, the district court did not err in adopting the

recommendation of the magistrate with respect to English’s negligent design

claim.
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C. Voir Dire

English next argues the district court erred in refusing to ask the venire

panel specific questions concerning tort reform. This 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 specific circumstances suggest a

significant risk of prejudice and if examination or admonition of jurors fails to

negate that inference.”). 

Before trial, English submitted to the court proposed voir dire questions

concerning tort reform. The district court did not, however, propound any of the

stipulated tort reform questions. English cites Utah 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 information, 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 are governed by Fed. R. Civ. P.
4Fed. 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 conduct the

examination. In the latter event, the court shall permit the parties or

their attorneys to supplement the examination by such further inquiry

as it deems proper or shall itself submit to the prospective jurors such

additional questions of the parties or their attorneys as it deems

proper.

5The court asked panel members:

Is there anybody in the room that would have difficulty

following the law in the jury instructions given by the judge and

would agree to do that?

. . . .

. . . [I]n your mind is there any reason that you know 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 parties 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 reason whether

expressed or unexpressed, that you ought not to sit on the jury? 

R. at 700, 719-20. In addition to those questions, the judge admonished the

potential jurors:

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47(a),4

 rather than state voir dire requirements. See id. at 817-18. The court

held: “Utah law, requiring tort reform voir dire and specifically prescribing the

contours of such, conflicts with the broad discretion 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 manner in which the district court

conducted voir dire. In this instance, there is nothing in the district court’s

questioning which constituted an abuse of discretion.5
You would be under a duty to follow that law and then to

apply the facts that you find to the law that is given, even if you

don’t agree with the law. Sometimes people don’t agree with the law

and think, well, that’s a ridiculous thing, or I don’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 places 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 plaintiff’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 related proceedings

were relevant and that Suzuki would be allowed to present evidence

-12-

D. CPSC Report

Next, English argues that the district court committed reversible error by

admitting into evidence the findings of a CPSC report 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 investigation . . . is

GRANTED subject to the following: the CPSC findings, as defined

in Rule 803 of the Federal Rules of Evidence are admissible, subject

to the trial judge’s ruling on relevance of the individual findings.

R. at 549. On the eve of trial, according to English’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 the
regarding such things. Suzuki’s counsel then spoke about such

things, with the help of visual aids . . . in his opening 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 occurrence of the ruling, English

points out that Suzuki has not contested his reference to the ruling. 

-13-

procedure under Fed. R. App. P. 10(c) to provide this 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 hearing or trial was

made, or if a transcript is unavailable, the appellant may prepare a

statement of the evidence or proceedings from the best available

means, including the appellant’s recollection. The statement shall be

served on the appellee, who may serve objections or proposed

amendments thereto within 10 days after service. Thereupon 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 clerk of the district

court in the record on appeal.

English has neither created such a statement, nor submitted 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 district court to exclude evidence of

government reports about ATV safety). English relies heavily on Kloepfer to

argue that this court should find an abuse of discretion because the district court

held the CPSC findings admissible. We note, however, that Kloepfer is not a per
-14-

se rule of law that all government reports which do not focus on the specific ATV

but on all ATV’s generally are impermissibly broad. Rather, Kloepfer stands for

the proposition that based on the particularities of that case, it was not an abuse

of discretion for the district court judge to determine 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 respect to an evidentiary ruling

only when it makes “‘an arbitrary, capricious, whimsical, 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 whether 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 transcript of [the court’s] ruling

exists.” Id. Referencing Fed. R. App. P. 10(c), this court held: “The defendants

have not submitted [a statement of the proceedings before the trial court]. 

Although this procedure is not mandatory, without a record of the proceedings
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below we have no option but to defer to the district 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 ruling 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 create a statement under Fed.

R. App. P. 10(c) of the proceedings in which the district 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 misrepresentations: 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 that Suzuki made further
-16-

misrepresentations by implying in advertisements and other representations that

“particular dangers, including the danger of being severely injured when riding in

a sand dune environment, could occur only where there is operator error.” 

In his report and recommendation, the magistrate judge recommended

granting Suzuki’s motion on all of the misrepresentation claims except the alleged

misrepresentation that the LT500R was safe for use in sand dunes. The

magistrate stated: “It appears that plaintiff had an 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 within 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 the 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 district 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 material 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 Restatement (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 misrepresentation of a

material fact concerning the character or quality of a chattel sold by

him is subject to liability for physical harm to a consumer of the

chattel caused by justified reliance upon the misrepresentation, even

though

(a) it is not made fraudulently or negligently; and

(b) the consumer has not bought the chattel from or entered

into any contractual relation with the seller.

In support of his claims of misrepresentation, English presented his own

testimony and that of an expert witness. English himself testified that he had

operated the LT500R for more than two years in sand and had been satisfied with

its performance. English’s own expert witness testified 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 found that the LT500R could

not be safely operated in sand.

With respect to English’s other affirmative misrepresentation claims,

English admitted in deposition testimony that Suzuki did not affirmatively tell

him that the LT500R was safe if he did nothing wrong or that a ROPS was not
7English stated: “I don’t feel that the information was false.” R. at 528. 

With respect to videos which depicted people enjoying their rides on the LT500R,

rather than crashing and injuring themselves, English stated: “[A]gain, I would

say I didn’t see anything that was false that I could think of . . . . [they] show you

the fun side of riding an ATV.” Id.

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necessary.7

 Furthermore, as the magistrate judge concluded, depicting or billing

an item as fun and enjoyable, rather than explaining or showing possible accidents

or injuries, does not constitute a misrepresentation 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 misrepresentation

requires reliance on “a particular and specific statement concerning quality or

fitness as the foundation for an action of misrepresentation under Section 402B”). 

Additionally, these claims appear to be claims of misrepresentation by

omission, rather than affirmative misrepresentation claims. All of English’s

misrepresentation by omission claims smack of an attempt to reinstate the failureto-warn claims which, as discussed above, were waived. English argues that

“Suzuki . . . failed to disclose the fact that a rider 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 a misrepresentation claim for

purposes of Restatement (Second) § 402B. Section 402B addresses only an

affirmative representation of material fact regarding the character or quality of the

product and requires the plaintiff’s reliance on the representations. See
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Restatement (Second) Torts § 402B cmts.; Rehler v. Beech Aircraft Corp., 777

F.2d 1072, 1077 n. 8 (5th Cir. 1985) (noting that under Texas law, § 402B covers

only affirmative or express misrepresentations). The district court thus did not err

in determining Suzuki was entitled to judgment as a matter 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