[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 15-13398

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D.C. 7:13-cv-00091-HL

JOSE HERNANDEZ,

PRISCILLA HERNANDEZ,

Plaintiffs-Appellants,

versus

CROWN EQUIPMENT CORPORATION,

Defendant-Appellee.

 

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Appeal from the United States District Court

for the Middle District of Georgia

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(May 3, 2016)

Before WILLIAM PRYOR, ANDERSON and PARKER,* Circuit Judges

__________ 

* Honorable Barrington D. Parker, Jr., United States Circuit Judge for the Second Circuit, sitting 

by designation.

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PER CURIAM: 

After oral argument and careful review of the briefs and record, we conclude 

that the judgment of the district court should be affirmed. The jury’s verdict – that 

the product of Defendant-Appellee Crown Equipment Corporation (the 

“Company”) was not defective – is supported by overwhelming evidence. 

Plaintiffs’ own expert, Thomas Berry, conceded that no manufacturer, no 

government authority, and no standards organization had supported his proposed 

design. The Occupational Safety and Health Administration’s (“OSHA”) 

regulation supported the Company’s design, and the agency wrote a letter to Berry 

expressly rejecting his proposed design. Similarly, the American National 

Standards Institute/American Society of Mechanical Engineers (“ANSI/AMSE”) 

has promulgated a standard consistent with the Company’s design and inconsistent 

with Berry’s. The same is true with respect to the National Institute for 

Occupational Safety and Health (“NIOSH”), and indeed the record contains 

evidence that this organization also has expressly rejected Berry’s preferred design. 

We turn now to briefly discuss each of the Appellants’ arguments on appeal.

First, Appellants challenge as inadmissible hearsay Defendant’s Exhibit 22 –

the preamble to the OSHA regulation – which the district court admitted into 

evidence over their objection. Although Appellants concede that those portions of 

the exhibit which merely quote or paraphrase the actual OSHA regulation were 

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admissible, Appellants argue that other portions of the preamble were inadmissible 

hearsay. We need not resolve the dispute between the parties as to whether or not 

the preamble is part of the regulation, or the significance thereof. The crucial 

information conveyed to the jury by this exhibit was the clearly admissible 

substance of the regulation itself – i.e., that the OSHA standard provided for 

operators to step backward off of the forklift in the event of a tip-over or an offthe-dock accident. The jury also heard from live witnesses that OSHA had 

expressly rejected the alternate design (enclosing the compartment with a door) 

proposed by Berry. The jury also knew that OSHA had written a letter to Berry 

rejecting his alternate design and explaining why the open compartment was 

preferable from a safety standpoint. The jury also heard from an expert witness 

that OSHA’s standard in effect endorsed ANSI/ASME Rule B56.1, which 

expressly required an open compartment for this forklift to permit easy ingress and 

egress so that, in the event of a tip-over or off-the-dock accident, the operator 

could step off and away from the truck. In light of the fact that the crucial 

information from Defendant’s Exhibit 22 was properly before the jury, and in light 

of our careful review of the entirety of the evidence, we cannot conclude that the 

portions of this exhibit to which Appellants point on appeal as inadmissible had 

any adverse effect on the Appellants’ substantial rights.

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We turn next to Appellants’ argument that the district court erroneously 

admitted the actual documents and videos reporting the various tests and studies 

undertaken or commissioned by the company in developing (or continuing) its 

design of the forklift with an open compartment. Appellants argue that the 

documents are inadmissible hearsay. First, it is not entirely clear under Georgia 

law that the documents are inadmissible. Although not admissible to prove the 

truth of these test results, they may well have been admissible to show that the 

Company made reasonable efforts to create a safe design. Second, the crucial 

aspects of the test results were included in the testimony of expert witnesses who 

testified at trial and relied upon the tests to support their expert opinions. Finally, 

even if the admission of the tests and studies was error, because the crucial aspects 

of the test results were properly before the jury from the testimony of the 

witnesses, we do not believe that the mere additional presence of the documents 

themselves had any substantial adverse effect. Similarly, our review of the record 

persuades us that any aspects of the test not actually included in the testimony of 

the witnesses had no substantial adverse effect. Accordingly, we reject Appellants’ 

challenges based on the several tests and studies relied upon by the Company’s 

experts.

Next, Appellants argue that the district court improperly excluded two tests 

performed and relied upon by Appellants’ expert, Berry. The district court 

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excluded those tests pursuant to Daubert v. Merrell Dow Pharmaceuticals, Inc.,

509 U.S. 579, 597, 113 S. Ct. 2786, 2799 (1993), after a hearing at which several 

experts, including Berry, testified. We cannot conclude that the district court 

abused its discretion in concluding that the tests were insufficiently realistic to be 

reliable. By contrast, the tests relied upon by the Company’s experts (which the 

district court admitted) were published and peer reviewed, and their use of 

anthropomorphic dummies was an accepted methodology for evaluating injury 

potential.

Appellants also challenge the district court’s decision not to allow Berry to 

answer a particular question which attempted to elicit Berry’s opinion as to 

whether the Company’s product was defective. The Company objected to the 

question, and the district court sustained the objection on the grounds of Federal 

Rule of Evidence 704. We need not address the law of evidence with respect to the 

ultimate issue. See Fed.R.Evid. 704; see also commentary thereto. Even assuming 

error, there was no harmful effect on Appellants’ substantial rights because 

numerous other questions and answers were admitted which clearly articulated 

Berry’s opinion regarding the challenged question.

Finally, Appellants argue that the district court erred in declining their 

request to instruct the jury that contributory negligence is not a defense to a 

products liability claim. Under Georgia law, contributory negligence is not a 

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defense to a products liability claim, though the plaintiff must still prove that the 

defect caused his injury. Deere & Co. v. Brooks, 250 Ga. 517, 518, 299 S.E.2d 

704, 706 (1983) (“[C]ontributory negligence consisting of a careless act by the 

injured person with respect to the product is no defense, where the actual cause of 

the injury arises from an unanticipated defect in the product itself, and not from the 

careless act of the plaintiff.”). Although Appellants suggest that the evidence 

before the jury that an operator could have avoided this kind of injury might have 

been admissible as relevant to causation, Appellants argue that that same evidence 

also tended to show contributory negligence and that thus the requested instruction 

was appropriate. We need not address the viability of Appellants’ suggestions or 

whether the requested instruction was appropriate. The district court’s instructions 

clearly separated for the jury the issues of defect vel non on the one hand, and 

causation, on the other. The instructions and verdict form clearly instructed the 

jury to address the causation issue only if they found that the product was 

defective. Because the jury found no defect, the jury never reached the causation

issue. Therefore, a failure to instruct with respect to the causation issue could not 

have adversely affected Appellants’ substantial rights.

For the foregoing reasons, the judgment of the district court is

AFFIRMED.

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