UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 12-1500

S. L. M., an infant, by and through her mother and next 

friend, Amy L. Musick,

Plaintiff – Appellant,

v.

DOREL JUVENILE GROUP, INC.,

Defendant – Appellee,

and

COSCO MANAGEMENT, INC.,

Defendant.

Appeal from the United States District Court for the Western 

District of Virginia, at Abingdon. James P. Jones, District

Judge. (1:11-cv-00005-JPJ-PMS)

Argued: January 29, 2013 Decided: March 25, 2013

Before KING, WYNN, and DIAZ, Circuit Judges.

Affirmed by unpublished per curiam opinion.

ARGUED: James J. O'Keeffe, IV, GENTRY, LOCKE, RAKES & MOORE, 

Roanoke, Virginia, for Appellant. Jonathan Judge, SCHIFF 

HARDIN, LLP, Chicago, Illinois, for Appellee. ON BRIEF: Walter 

C. Greenough, SCHIFF HARDIN, LLP, Chicago, Illinois; Lynne
2

Blain, Dannel C. Duddy, HARMAN, CLAYTOR, CORRIGAN & WELLMAN, PC, 

Glen Allen, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
3

PER CURIAM:

In this products liability action, Amy L. Musick, as mother 

and next friend of her infant daughter, S.L.M., appeals the 

judgment of the district court in favor of Dorel Juvenile Group, 

Inc., the defendant below. Dorel, which manufactures and 

markets child safety seats, was sued by Musick in the Western 

District of Virginia for grievous head injuries S.L.M. sustained 

when a young, inattentive driver struck the Musicks’ minivan in 

the rear. At the close of the evidence and the parties’ 

arguments, the court instructed the jurors on Virginia law, then 

produced a special verdict form, directing the jury to consider 

sequentially: (1) whether Dorel’s High Back Booster seat (the 

“booster seat”), in which S.L.M was secured at the time of the 

accident, was defective; (2) if so, whether the defect 

proximately caused the girl’s injuries; and (3) in the event 

that defect and causation had been adequately proved, the proper 

amount and attribution of damages.

The jury returned its verdict in favor of Dorel, finding at 

the threshold that the booster seat was not defective. Musick 

subsequently moved for a new trial, alleging that certain 

evidence was improperly admitted, that the jury was led awry by 

the district court’s instructions, and that defense misconduct 

unfairly tainted the proceedings. The court denied Musick’s 

motion and entered judgment for Dorel. On appeal, Musick 
4

pursues more or less the same assignments of error, contending

primarily that the jury was unduly influenced by the court’s 

decision to allow Dorel to admit into evidence that it designed 

and constructed the booster seat in compliance with Federal 

Motor Vehicle Safety Standard 213 (“FMVSS 213”), 49 C.F.R. 

§ 571.213, which establishes child safety seat standards based 

on testing conducted for frontal impacts, but not on testing for 

rear-impact collisions like the one that injured S.L.M. In 

accordance with our explanation below, we reject Musick’s 

challenges to the jury’s verdict and affirm.

I.

As prescribed by the federal rules, “[e]vidence is relevant 

if . . . it has any tendency to make a fact more or less 

probable than it would be without the evidence[,] and . . . the 

fact is of consequence in determining the action.” Fed. R. 

Evid. 401. Relevant evidence may nonetheless be excluded “if 

its probative value is substantially outweighed by” any of 

several dangers, including unfair prejudice and confusion of the 

issues. See Fed. R. Evid. 403.

The district court here was imbued with “broad discretion 

in ruling on questions of relevancy and in balancing the 

probative value of relevant evidence against any undue 

prejudice.” United States v. Zandi, 769 F.2d 229, 237 (4th Cir. 
5

1985) (citing Hamling v. United States, 418 U.S. 87, 124-25 

(1974)). We review the court’s evidentiary rulings merely to 

ensure that it did not abuse its considerable discretion. See

Belk, Inc. v. Meyer Corp., U.S., 679 F.3d 146, 161 (4th Cir. 

2012).

II.

We begin with black-letter law, namely, that “a product’s 

compliance with an applicable product safety statute or 

administrative regulation is properly considered in determining 

whether the product is defective with respect to the risks 

sought to be reduced by the statute or regulation.” Restatement 

(Third) of Torts: Prod. Liab. § 4(b) (1998); see Talley v. 

Danek Med., Inc., 7 F. Supp. 2d 725, 731 (E.D. Va. 1998) 

(observing that, in evaluating design defect, “‘a court should 

consider whether the product fails to satisfy . . . applicable 

government standards’” (quoting Redman v. John D. Brush & Co., 

111 F.3d 1174, 1177 (4th Cir. 1997) (internal citation 

omitted))). Were we to accept Musick’s position that FMVSS 213

is not an “applicable” administrative promulgation (and thus 

irrelevant to Dorel’s defense), we would also be constrained to 

accept that the “risks sought to be reduced” by the regulation 

necessarily excluded the specific risk of injury through a rearend collision. In light of such exclusion, it would logically 
6

follow that FMVSS 213 could not have been intended to reduce the 

risks presented by motor vehicle collisions as a whole.

We cannot so construe the regulation, which provides on its 

face, plainly and simply, that its purpose is “to reduce the 

number of children killed or injured in motor vehicles,” without 

regard to how those children may come to be endangered. 49 

C.F.R. § 571.213 S2 (2012). At trial, the regulation’s supposed 

lack of attention to rear-impact testing was readily explained 

by Dorel’s expert, William Van Arsdell. Dr. Van Arsdell 

testified that the government had once considered implementing 

standards based on rear-impact testing, but deemed action 

unnecessary because the “child seats on the market would have 

passed those . . . standards.” J.A. 1467.1

 Under these

circumstances, we could hardly attribute to FMVSS 213 the 

abbreviated reach that Musick urges.

Moreover, though Musick’s claim proceeded on a theory of 

strict liability and not negligence, the care with which Dorel 

designed the booster seat was yet placed in issue. See Turner 

v. Manning, Maxwell & Moore, Inc., 217 S.E.2d 863, 868 (Va. 

1975) (instructing that a “manufacturer is under a duty to 

exercise ordinary care to design a product that is reasonably 

 1 Citations herein to “J.A. ___” refer to the contents of 

the Joint Appendix filed by the parties to this appeal.
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safe for the purpose for which it is intended (citation 

omitted)). Indeed, the jury was instructed in absolute 

conformity with Turner. See J.A. 1657. Evidence of Dorel’s 

compliance with FMVSS 213 was therefore relevant and necessary 

to demonstrate the company’s care in bringing the booster seat 

to market.

Although the evidence in question was helpful to Dorel, and 

thus, by corollary, prejudicial to the plaintiff’s case, that 

prejudice did not rise to the level of unfairness contemplated 

by Rule 403. Indeed, it arguably would have been unfair to 

Dorel for the district court to have excluded the challenged 

evidence on relevancy grounds, particularly given the nature of

Musick’s proof of defect. That proof consisted of expert and 

anecdotal testimony intended to show that the booster seat was 

defective because Dorel could have designed it with larger side 

wings and energy absorbing padding, at a minimum of additional

cost. See, e.g., J.A. 996-97.

There was no evidence, however, to the effect that the 

hypothetical design changes would have made the seat safer only 

in the event of a rear-impact collision. Rather, the testimony 

established that the proffered changes would have made the seat 

more safe generally. See, e.g., J.A. 699 (testimony of 

plaintiff’s expert on biomechanics, Dr. Stefan Duma, that 

padding “[a]bsolutely would have effectively eliminated any risk 
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of skull fracture,” without qualification as to type of 

collision); id. at 996 (testimony of mechanical engineer Gary 

Whitman, appearing on behalf of plaintiff, that “large side 

wings and energy absorbing padding was necessary to provide good 

protection to children,” without minimizing protective benefits 

afforded in front- or side-impact collisions).2

Because Musick’s evidence attacked only the general design 

of the booster seat, it would have been inequitable to have 

excluded Dorel’s competing evidence in kind. We recognize that 

our conclusion today may be in some tension with those reached 

by two state courts that have considered the similar issue. See

Malcolm v. Evenflo Co., Inc., 217 P.3d 514, 522-23 (Mont. 2009); 

Uxa ex rel. Uxa v. Marconi, 128 S.W.3d 121, 130-31 (Mo. Ct. App. 

2003). We respectfully disagree with the outcomes reached in

these cases, and emphasize that the court’s decision in Malcolm

was based in part on Montana’s rejection of that portion of the 

Restatement on which we have relied as accurately stating the 

law of Virginia. The summary ruling in Marconi, under 

 2 The skull fracture alluded to by Dr. Duma was devastating, 

permanently disabling S.L.M. such that her lifetime cost of care

is, according to the trial evidence, likely to approach $10 

million. See J.A. 874-75. The circumstances of this case are 

truly tragic, as the district court acknowledged. See id. at 

1873. We do not envy the task undertaken by the jury here, 

which must have been extraordinarily difficult; that is all the 

more reason, however, for us to respect the verdict it 

ultimately reached.
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circumstances less distinguishable from the case at bar, suffers

from a brevity of analysis and does not persuade us.3

Based on the above considerations, we are unwilling to 

conclude that the district court abused its discretion in 

admitting evidence of Dorel’s compliance with FMVSS 213. We 

have also examined the jury instructions relating to that 

regulation, and we can discern no abuse of discretion; each 

instruction accurately states Virginia law and was warranted by 

the trial evidence.4

III.

With respect to the remaining assignments of error, we are 

content to affirm the judgment below on the grounds set forth by 

 3 Musick also maintains that the district court abused its 

discretion by admitting into evidence what was represented to be 

a “preamble” to the regulation. Although there is now some 

substantial question as to whether the exhibit is what it was 

represented to be, there was no objection made at trial, and its 

admission was not plain error.

4 We single out for comment the district court’s instruction 

relating to FMVSS 213. The court instructed the jury that, as 

to the question of defect, it “may consider, among other things, 

any pertinent safety standards issued by the government. Such 

evidence may assist you in determining whether or not the car 

seat in question was defective, but does not require that you 

find one way or the other as to that issue.” J.A. 1660 

(emphasis added). We are satisfied that the court’s instruction 

adequately informed the jury that, contrary to Musick’s 

contention, Dorel’s compliance with the regulation was not 

dispositive of the case as a whole.
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the district court in its thorough and well-reasoned memorandum 

Opinion and Order denying Musick’s motion for a new trial. See

Musick v. Dorel Juvenile Group, Inc., 847 F. Supp. 2d 887 (W.D. 

Va. 2012).

AFFIRMED