[DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

_______ _________________ No. 15

- 13398

________________________ D.C. 7:13

- cv - 00091

- HL

JOSE HERNANDEZ, P RISCILLA HERNANDEZ, Plaintiff s - Appellant s ,

v ersus CROWN EQUIPMENT CORPORATION, Defendant

- Appellee.

________________________ Appeal from the United States District Court for the Middle District of Georgia

________________________ ( May 3, 2016 ) Before WILL IAM PRYOR, ANDERSON and PARKER,* Circuit Judges

__________ * Honorable Barrington D. Parker, Jr., United States Circuit Judge for the Second Circ uit, sitting by designation. Case: 15-13398 Date Filed: 05/03/2016 Page: 1 of 62 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 ove rwhelming evidence. Plaintiffs’ own expert, Thomas Berry, conceded that no manufacturer, no government authority, and no standards organization had suppo rted 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 Standard s I nstitute/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 (“NIO SH”), 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 Appellant s’ arguments on appeal. First, Appellant s challenge as inadmissible hearsay D ef endant’s Exhibit 22

– the preamble to the OSHA regulation

– which the district court admitted into evidence over their objection . Although Appellant s concede that those portions of the exhibit which merely quote or paraphrase the actual OSHA regulation we re

Case: 15-13398 Date Filed: 05/03/2016 Page: 2 of 63 admissible, Appellant s 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 infor mation 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 off

the

- dock accident. Th e 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 effec t endorsed ANSI/ASME Rule B56.1 , which expressly required an open compartment for this forklift to permit easy ingre ss 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 ou r careful review of the entirety of the evidence, we cannot conclude that the portions of this exhibit to which Appellant s point on appeal as inadmissible had any adverse effect on the Appellant s’ substantial rights.

Case: 15-13398 Date Filed: 05/03/2016 Page: 3 of 64 We turn next to Appellant s’ argument t hat 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. Appellant s arg ue 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
C ompany 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 opinion s . 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 th emselves 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 Appellant s’ chall enges based on the several tests and studies relied upon by the Company’s experts. Next, Appellant s argue that the district court improperly excluded two tests performed and relied upon by Appellant s’ expert, Berry. The district court

Case: 15-13398 Date Filed: 05/03/2016 Page: 4 of 65 excluded those test s 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 concludi ng 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 meth odology for evaluating injury potential. Appellant s also challenge the district court’s decision not to allow Berry to answer a particular question which attempt ed to elicit Berry’s opinion as to whether the Company’s product was defective

. The Company o bjected 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 ass uming error, there was no harmful effect on Appellant s’ substantial rights because numerous other questions and answers were admitted which clearly articulated Berry’s opinion regarding the challenged question. Finally, Appellant s 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

Case: 15-13398 Date Filed: 05/03/2016 Page: 5 of 66 defense to a products liability claim, though the plaintiff must s till 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 ca use of the injury arises from an unanticipated defect in the product itself, and not from the careless act of the plaintiff. ”). Although Appellant s 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, Appellant s 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 Appellant s’ 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 Appellant s’ substantial rights. For the foregoing reasons, the judgment of the district court is
AFFIRMED. Case: 15-13398 Date Filed: 05/03/2016 Page: 6 of 6