Babcock v. General Motors Corp.Babcock v. General Motors Corp.
This аppeal is taken by defendant-appellant General Motors Corporation (“GM”) from an adverse jury verdict in favor of plaintiff-appellee Frances A. Bab-cock as executrix of the estate of Paul A. Babcock, III, and individually. The case arose from an accident on February 21, 1998, when a General Motors pickup truck diiven by Paul A. Babcock, III, went off the road and struck a tree. The accident rendered Babcock a paraplegic. On June 15, 1999, Babcock died as a result of complications from his injuries.
I. BACKGROUND
Plaintiff brought suit alleging negligence and strict liability against the defendant. The jury returned a verdict finding GM liable on the negligence count and not liable on the strict liability count. It is undisputed that when Babcock was first seen after the accident his seat belt was not fastened around him. The complaint alleged that Babcock was wearing his seat belt prior to the accident, but that the belt unbuckled as soon as pressure was exerted on it and the buckle released due to a condition known as “false latching.” The main focus of the tidal was on this claim of false latching.
Three main issues are before us: (1) whether the verdict should be set aside because it was internally inconsistent; (2) whether GM forfeited its objection to the alleged inconsistency because of its failure to follow the requirements of Rules 49(b) and 51 of the Federal Rules of Civil Procedure as applied by this court; and (3) whether the evidence was sufficient to support the verdict of liability based on negligence. We affirm the judgment below.
II. DISCUSSION
A. The Claim of Inconsistent Verdicts
GM advances a series of arguments to the effect that the jury’s verdict on the negligence count is invalid and cannot stand: (1) as a matter of law, in thе absence of a defect in the product, GM could not be found liable for negligence; (2) thus, the verdicts were inconsistent; (3) the inconsistency in the verdicts was caused by the district court’s erroneous jury instructions;
and
(4) plaintiffs failure to appeal the verdict in favor of GM on the strict liability claim precludes entry of
None'of these arguments or variаtions thereof was made in the trial court. During the discussions on the proposed jury charge, the trial judge discussed the Verdict Form with counsel on two separate occasions. GM did not object to the form on either occasion. The Verdict Form on liability submitted to the jury stated:
SPECIAL VERDICT FORM
1. Has plaintiff proved her negligence claim by a preponderance of the evidence?
X
Yes No
2. Has plaintiff proved her product liаbility claim by a preponderance of the evidence?
X
Yes No
[Answer questions 3 and 4 only if you have answered yes to question 1 and/or 2]
Although the Verdict Form is entitled “Special Verdict Form,” it seems clear that it was not a true “special verdict,” as described in
We have held that under
Our finding of forfeiture is reinforced by GM’s failure to object properly to the jury instructions, which made clear that the jury could return a verdict in Babcock’s favor if it found either negligence or a design defect.
Cf. Toucet v. Maritime Overseas Corp.,
There is nothing in the record from which it can be found either directly or inferentially that GM objected to the submission to the jury of both the negligence and strict liability claims. In fact, defense counsel treated the submission of both claims as routine procedure. GM’s only objection after argument and prior to the jury’s retiring for deliberations was as follows:
COUNSEL FOR GM: I just want to reiterate the comments that we had before that the court prepared the charge on the issue of defective design versus testing.
THE COURT: All right. That your argument is that this does not include a negligence testing claim, and ... you’ve adequately preserved that argument.
Evidently, the district court understood GM to be arguing (as it had during an earlier conference) that Babcock’s claim of negligent testing was not prоperly in the case because it was not included in the Amended Complaint. Nothing in GM’s post-charge comments raised the claim of possible verdict inconsistency it presses on appeal. We conclude that those brief comments did not satisfy the requirements of
The only exception to nullification of appellate issues for failure to follow
We examine New Hampshire law to determine whether there was plain error below. If New Hampshire law forbade combining a count in negligence with a count in strict liability in a tort case, the plain error doctrine might be applicable. But New Hampshire law does not prohibit submitting both negligence and strict liability claims to the jury.
See, e.g., Cyr v. J.I. Case Co.,
The same is true for GM’s claim that the verdict is internally inconsistent and its related argument that the jury’s finding of negligence is invalid as a matter of law in light of its determination that there was no design defect. Both claims are based on the premise that a design defect is an essential element of negligence under New Hampshire law. We need not determine whether that proposition is correct- — it is enough to conсlude, as we do, that New Hampshire law is not so clear on the question that it was plain error for the district court to enter judgment on the jury’s verdict.
See Stancill v. McKenzie Tank Lines, Inc.,
I deny the motion and offer the following сomments in addition to the explanations I gave when I made the rulings to which General Motors objects: (1) General Motors was represented by highly skilled counsel and it was apparent to me that counsel understood at the final pretrial conference and throughout the trial that the plaintiff was asserting a claim for negligent testing; (2) General Motors has waived any claim that thespecial verdict form was unacceptable by failing to object at a time when I could have taken corrective action; and (3) General Motors has waived any claim that the verdicts are inconsistent because I gave it an opportunity to assert such a claim before I discharged the jury and it declined to make its argument at a time when I could have taken corrective action. I determine that oral argument on the motion is unnecessary because the issues have been well briefed. Motion denied.
We agree with the district court and affirm its denial of the motions.
B. The Evidence
GM argues that there was an absence of evidence that Babcock was wearing his seat belt at the time of the accident. It points out that no one saw a seat belt on him immediately after the accident. GM also argues that although Babcock himself was covered with blоod and blood was on the interior of the cab of the truck, no blood was on the seat belt straps.
Plaintiff did not challenge these facts, but claimed that she would prove by habit or custom evidence that Babcock always wore a seat belt when he drove a motor vehicle. The district court ruled that such evidence would be allowed and that the question of whether Babcock was wearing a seat belt at the time of the accident was for the jury. GM objected to this ruling. At the time of the court’s ruling, GM offered no case law to support its position and its brief cites no cases holding that habit or custom evidence could not be used to prove seat belt use under the facts of this case. It is well-established that habit evidence may be used to prove a person’s conduct on a particular occasion: “Evidence of the habit of a person ... whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the person ... on a particular occasion was in conformity with the habit....”
We recount testimony by three of the plaintiffs witnesses, all of whom described Babcock’s habitual seat belt use. Ernest Babcock, brother of the decedent, testified that he drove with his brother, Paul Bab-cock, at least ten to twenty times a year from 1972 to 1998. George Clausen, Paul Babcock’s neighbor, had known him for about a year and a half prior to the accident and had ridden with him about a dozen times. Judith Hobbs Jackson had known Babcock since the two were children. She had ridden with him eight to twelve times over the last several years, most of these times with Babcock as the driver. All three witnesses testified that Babcock always wore his seat belt, regardless of whether he was the driver or a passenger and regardless of the length of the trip. Jackson also testified that Bab-cock always put on his seat belt before the vehicle in which he was riding started.
We rule that the district court did not err in submitting to the jury the question of whether Babcock was wearing his seat belt immediately prior to the impact of the truck with the tree. We also note that GM did not object to the jury instructions on this issue as required under
GM also objects to the evidence with respect to the testimony of plaintiffs
In
Daubert
the Court rejected the rule stated in
Frye v. United States,
That the Frye test was displaced by the Rules of Evidence does not mean, however, that the Rules themselves place no limits on the admissibility of purportedly scientific evidence. Nor is the trial judge disabled from screening such evidence. To the contrary, under thе Rules the trial judge must ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable.
The primary locus of this obligation is Rule 702, which clearly contemplates some degree of regulation of the subjects and theories about which an expert may testify. “If scientific, technical, or other specialized knowledge will assist the tner of fact to understand the evidence or to determine a fact in issue” an expert “may testify thereto.”
Id.
at 589,
Faced with a proffer of expert scientific testimony, then, the trial judge must determine at the outset, pursuant to Rule 104(a), whether the expert is proposing to testify to (1) scientific knowledge that (2) will assist the trier of fact to understand or determine a fact in issue. This entails a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodоlogy properly can be applied to the facts in issue.
Id.
at 592-93,
The penultimate paragraph summarizes the holding of Daubert:
To summarize: “General acceptance” is not a necessary precondition to the admissibility of scientific evidence under the Federal Rules of Evidence, but the Rules of Evidence-especially Rule 702-do assign to the trial judge the task of ensuring that an expert’s testimony both rests on a reliable foundation and is relevant to the task at hand. Pertinent evidence based on scientifically valid principles will satisfy those demands.
Id.
at 597,
It is apparent to us that the expert’s testimony met the standards set forth in
Daubert.
The evidence admitted was both relevant and reliable. The district court followed
We rehearse the testimony of Dr. Malcolm Newman, plaintiffs expert. Dr. Newman specializes in structural and me
Based on photos and other materials given to him, Dr. Newman formed an opinion as to how fast the Babcock vehicle was traveling when it hit the tree. He explained to the jury, using the photos and other materials furnished to him, the analysis he followed to determine the speed at time of impact. Dr. Newman testified that the technology he used to determine the “impact speed” is one accepted by all recognized accident reconstruction specialists and that the methodology he followed was accepted by the National Highway Traffic Safety Administration. In Dr. Newman’s opinion, the “impact” speed was between twenty and twenty-five miles per hour. He also was of the opinion that the Bab-cock truck was traveling at a speed of between thirty-five and forty miles per hour when it left the highway. Dr. Newman also explained to the jury how he arrived at this estimate.
In Dr. Newman’s opinion, at an impact speed of twenty-five miles per hour, a properly belted occupant would be fully protected by the seat belt. Dr. Newman opined that Babcock was either not wearing a seat belt or the seat belt was defeсtive. From examining the seat belt itself, Dr. Newman concluded that it had been used just prior to impact.
Using the seat belt found in the cab of the truck, Dr. Newman explained to the jury his opinion as to how the seat belt disengaged upon impact. He eliminated a manufacturing defect and “inertial release” 3 as causes for the unbuckling of the seat belt. He testified that in his opinion, the seat belt unbuckled because of false latching, otherwise known as “partial engagement.”
With the aid of photos, the accident seat belt, and another similar seat belt, Dr. Newman demonstrated how false latching can occur. In false latching the occupant thinks that the belt is fully latched but in reality, it is not. Moreover, according to Dr. Newman, both falsely latched and fully latched seat belts trigger the same signals in the vehicle as to whether the seat belt is in use.
Dr. Newman characterized a false latch propensity as a design defect. He used a schematic drawing to explain in detail all of the latch mechanisms in a safety belt buckle. Dr. Newman testified that because of the design of a GM belt buckle, continued use of the buckle increases the danger of false latching. Using a Volvo seat belt buckle, he demonstrated that its design eliminated the risk that false latching would occur. He noted that the buckle on the GM truck was tested pursuant to section 209 of the Federal Motor Vehicle Safety Standards.
Dr. Newman testified about the testing safety belt buckles must undergo. He concluded that the GM buckle could develop false latching due to normal wear and tear. He was of the opinion that there was no testing for false latching. Dr. Newman concluded his direct testimony by opining that the prоbable cause of the lack
Dr. Newman’s testimony could be found by the jury to be relevant and reliable. We hold that the trial court did not err by allowing the jury to hear it.
The other arguments made by appellant do not merit discussion.
The judgment below is affirmed. Costs on appeal awarded to plaintiff.
Notes
. In the alternative, the jury’s answers to the questiоns on the verdict form could be described as two general verdicts.
See Merchant v. Ruhle,
. In contrasting habit evidence with character evidence, the Editorial Explanatory Comment to
. Inertial release is prompted by sudden changes in acceleration or deceleration and might cause a bell to unlatch in an accident.