ORDER
This matter came before the Court on the Plaintiffs Motion for a New Trial (“Plaintiffs Motion”). For the reasons set forth herein, the Court FINDS that a hearing is not necessary to address the Plaintiffs Motion. The Court further DENIES the Plaintiffs Motion and ORDERS that judgment be entered for the Defendant in accordance with the jury verdict rendered on June 2,1999.
I. Factual and Procedural History
On August 5, 1998, the Plaintiff, Sharin C. Brown (“Plaintiff’ or “Brown”), filed a Complaint which named Ford Motor Company, a Delaware corporation with its principal place of business in Detroit, Michigan, as the Defendant (“Defendant” or “Ford”). The Plaintiffs Complaint alleges that Brown was injured in a rollover accident on August 12, 1996, in Suffolk, Virginia, while driving a 1991 Ford Ranger 4 x 2 pick-up truck (“Ranger”). Brown suffered multiple injuries. Two theories of recovery survived pre-trial motions and were submitted to the jury: (1) that the Defendant negligently designed and manufactured the Ranger, proximately causing Brown’s injuries; and (2) that the Defendant breached implied warranties that the Ranger was fit and safe for its intended purpose. The Plaintiff sought compensatory damages, punitive damages, attorneys’ fees, and court costs.
*583 The trial began on May 24,1999, and the jury returned a verdict for the Defendant on both claims on June 2, 1999. At that time, the Court declined to enter judgment, granting the parties leave to file post-trial motions addressing its rulings on the admissibility of evidence rеlating to the Plaintiffs and her passenger’s use or non-use of her seatbelt on August 12, 1996. The Plaintiff filed a Motion for a New Trial on June 15, 1999. The Defendant filed its Response on June 29, 1999, and the Plaintiff filed her Reply on July 2, 1999.
II. The Court’s Seatbelt Ruling at Trial
Outside of the jury’s presence, the Court heard argument and ruled that Virginia Code § 46.2-1092 and § 46.2-1094(D) were in derogation of the common law of Virginia that provides that violation of a statute is ordinarily negligence per se. The Court also ruled that thesе sections were contrary to the public policy of Virginia, which encourages seatbelt use. Accordingly, the Court found that these statutes should be strictly construed. The Court further ruled that the language of the statutes dictated that evidence of seat-belt use by either the Plaintiff or the passenger was admissible for all issues before the Court except the Plaintiffs alleged contributory negligence and her alleged failurе to mitigate damages. Specifically, the Court ruled that the evidence of seat-belt use or nonuse was admissible as evidence of causation as to negligence or breach of warranty as well as to product misuse.
The Court instructed the jury regarding negligence and contributory negligence. Jury Instructions 13-17. However, the Court limited evidence of the Plaintiffs seatbelt use in Jury Instruction 18, instructing the jury that:
[i]n determining certain of the issues in this case, one of the elements of evidence which you may consider is the question of whether or not the plaintiff was wearing a seatbelt when her motor vehicle rolled over.
With regard to the plaintiffs negligence claim, you may consider the use or non-use of the seatbelt in determining whether the defendant negligently designed the motor vehicle, but you may not find the plaintiff guilty of contributory negligence based upon a finding thаt she was not wearing her seatbelt when her motor vehicle rolled over.
With regard to the plaintiffs breach of warranty claim, you may consider the use or non-use of the seatbelt in determining whether the motor vehicle as manufactured and sold was reasonably safe when used for its intended purpose and also in determining whether the plaintiff misused the motor vehicle. 1
Jury Instruction 18. The Court also instructed the jury regarding the Plaintiffs breach of warranty claim and the Defendant’s product misuse defense. Jury Instructions 23-26.
III. The Plaintiff’s Motion for a New Trial
The Plaintiffs Motion contends that the Court should order a new trial because (1) admission of seatbelt nonuse is prohibited under Virginia law and (2) even if such evidence were admissible to demonstrate the total design package of the Ranger, the jury instructions failed to limit that evidence sufficiently and were thus in plain error. In support of her first contention, thе Plaintiff argues that Virginia Code § 46.2-1094(D) (“ § 46.2-1094(D)”) bans the introduction of seatbelt evidence for any purpose in any case arising out of the operation of a motor vehicle. The Plaintiff argues that her case arose out of the operation of a motor vehicle because she could not have been injured without operating the Ranger, and the Court’s construction *584 of § 46.2-1094(D) effectively limited it to the scope of Virginia Code § 46.2-1092. The Plaintiff argues that § 46.2-1094(D) has a farther reach than § 46.2-1092. She further contends that the introduction of the seatbelt evidence was harmful error which affected the jury’s verdict.
In support of her second contention, the Plaintiff argues that the Court’s instructions failed to explain to the jury the limited role of the evidence and that such a failure is plain error amounting to fundamental unfairness. Specifically, the Plaintiff argues thаt the Court’s instructions failed to distinguish between misuse and negligence. Plaintiff further argues that the Court’s instructions overemphasized misuse as a defense to the warranty claim, while minimizing the prohibition of seat-belt evidence in the consideration of the Plaintiffs contributory negligence. The Plaintiff cites
Siren v. Behan
for her contention that the Court mis-instructed the jury as to the limitations of the seatbelt evidence.
The Defendant’s Response contends that the Plaintiffs Motion should be denied because: (1) her arguments are appellate in nature and insufficient to grant a new trial; (2) the Court properly applied the Virginia statutes; (3) her allegations concerning the limiting instruction are moot because the Verdict Form indicates that the jury did not consider evidence of seat-belt nonuse on the issues of contributory negligence or product misuse; and (4) the Plaintiff waived her objection to the efficacy of the Court’s limiting instruction because she did not object to the instruction at trial. The Plaintiffs Reply argues that she has alleged sufficient grounds for a new trial.
IV. Analysis
A. Federal Rule of Civil Procedure 59
Federal Civil Rule of Procedure 59 (“Rule 59”) permits the Court to grant a new trial in certain circumstances. Specifically, Rule 59(b) provides that “[a]ny motion for а new trial shall be filed no later than 10 days after entry of the judgment.”
Fed.R.Civ.P.
59(b). The Fourth Circuit has held in an unpublished opinion that a Rule 59 motion for a new trial may be made before the entry of judgment under the language of the rule.
Redic v. H. Watts,
Nos. 86-3824, 86-3869,
B. The Admissibility of the Seatbelt Evidence at Trial
Virginia Code § 46.2-1092 provides that “[flailure tо use the safety lap belts or a combination of lap belts and shoulder harness after installation shall not be deemed to be negligence. Nor shall evidence of *585 such nonuse of such devices be considered in mitigation of damages of whatever nature.” Another section of the Virginia Code, §• 46.2-1094(A), makes it illegal for an occupant of the front seat of a motor vehicle who is sixteen or older to fail to wear his or her seatbelt. Subsection D of § 46.2-1094 provides that
[a] violation of this section shall not constitute negligence, be considered in mitigation of damages of whatever nature, be admissible in evidence or be the subject of comment by counsel in any action for the recovery of damages arising out of the operation, ownership, or maintenance of a motor vehicle or any relating criminal statutе.
Va.Code § 46.2-1094(0).
In determining the applicability of § 46.2-1094(D) in a case such' as this 'where jurisdiction is based on diversity, the Court must first consider whether it is a substantive or procedural rule of law. A federal court sitting in diversity jurisdiction must apply the substantive law of the forum state, including that state’s choice of law rule.
Erie R. Co. v. Tompkins,
By its own terms, the Virginia statute contemplates both substantive and procedural elements. Section 46.2-1094(D) concludes with a statement that nothing in that section shall “change any existing law, rule, or procedure pertaining to any such civil action.” The first two elements of § 46.2-1094(D), concerning contributory negligence and mitigation of-damages, refer to a plaintiffs substantive rights. The last element of § 46.2-1094(D), however, is procedural in that it deals with admissibility of evidence and comment of counsel.
Under Virginia law, statutes in derogation of the common law must be strictly construed.
Sabre Construction Corporation v. County of Fairfax,
Neither Virginia nor the Fourth Circuit has interpreted the scope and nature of § 46.2-1094(D). A district court in the Western District of Virginia applied the Virginia statute to hold that evidence of the nonuse of a safety device cannot be used either in support of a defense to liability or in mitigation of damages.
Freeman v. Case Corporation,
While the Fourth Circuit has not had occasion to interpret § 46.2-1094(D), the Seventh Circuit discussed whether a similar North Carolina statute was a rule of evidence, and thus inapplicable in a diversity case, or whether it was a rule of substantive law, and therefore applicable.
Barron v. Ford Motor Co. of Canada,
Like the Seventh Circuit, a district court in Tennessee narrowly interpreted a seat-belt statute similar to Virginia’s when it held that the Tennessee statute did not allow evidence of the nonuse of a seatbelt to be considered as evidence of contributory negligence, assumption of risk, or a failure to mitigate damages.
MacDonald v. General Motors Corp.,
On the one hand, § 46.2-1094(D) рrovides that the failure to wear a seatbelt is not contributory negligence and may not be considered in mitigation of damages. On the other hand, § 46.2-1094(D) does not specifically limit seatbelt evidence in negligence or breach of warranty defective design claims, nor does it mention misuse of the product as a defense to warranty *587 claims. Thus § 46.2-1094(D) impacts a plaintiffs substantive rights with respect to contributory negligence and mitigation of damages, but the statute’s substantive power extends no further. In its silence with respect to negligence and breach of warranty, the statute does not disturb the procedural nature of admission of evidence and comment of counsel.
Insofar as § 46.2-1094(D) provides that failure to wear a seatbelt is not contributory negligence and may not be considered in mitigation of damages, it is substantive and thus controlling under Erie v. Tompkins. However, insofar as § 46.2-1094(D) limits the admissibility in evidence of the failure to wear a seatbelt or counsel’s comment upon such failure with regard to issues other than contributory negligence and mitigation of damages, it is procedural and not controlling in the instant case. Because the admissibility of evidence and comments of counsel are procedural matters, this portion of the statute is not controlling, and this Court will not expаnd the substantive provision of the statute beyond its clear and unambiguous terms.
The Court FINDS this evidence is relevant to the design and misuse issues. There is no provision in the Federal Rules of Evidence that would limit the admissibility of the failure to wear a seatbelt upon these issues. Therefore, the Court FINDS that evidence of the failure to wear a seatbelt is admissible as it relates to the issues of negligent design and manufacture, breach of warranty, and product misuse.
Prior tо the enactment of §§ 46.2-1092 and 46.2-1094(D), evidence of nonuse of a seatbelt was admissible if “... the defendant can demonstrate, by competent and satisfactory evidence, the extent of the plaintiffs injuries could have been avoided by wealing a seatbelt.”
Chretien v. General Motors Corp.,
Nos. 90-2090, 90-2110,
The Court FINDS that the limited admission of evidence relating to the Plaintiffs and her passenger’s use or nonuse of their seatbelts was proper under the Federal Rules of Evidence. Accordingly, the Court DENIES the Plaintiffs Motion for a New Trial insofar as .it is based on the evidentiary rulings rеgarding seatbelts.
C. The Jury Instruction Limiting the Use of Seatbelt Evidence
The Plaintiffs second argument is merely an extension of her first argument. The Plaintiff has asserted that the jury instruction limiting the use of the seatbelt evidence was plain error. The Fourth Circuit has held that “[a] motion for a new trial should not be granted ... where the moving party has failed to timely object to the alleged impropriety giving rise to the motion.” Dennis v. General Electric, 762 F.2d 365, 367 (4th Cir.1985). As the Defendant correctly nоted in its Response, *588 the Plaintiff did not object to the Court’s limiting instruction when given the opportunity to do so at the charging conference. Therefore, the Court FINDS that the Plaintiff failed to timely object to the content of the Court’s limiting instruction Number 18 regarding evidence of whether the Plaintiff was wearing a seatbelt on August 12,1996.
The case cited by the Plaintiff in support of her contention that this Court committed plain error with its limiting instruction held that seatbelt evidence was admissible in a defective design case for the purposes of the jury’s risk-utility analysis, but ordered a new trial because of the inadequacy of the jury instructions limiting the jury’s consideration of that evidence.
Siren v. Behan,
As to the Plaintiffs breach of warranty claim, under Virginia warranty law, a seller impliedly warrants that his product will be fit for the purposes for which it is ordinarily used.
Beard Plumbing and Heating, Inc. v. Thompson Plastics, Inc.,
The Court instructed the jury as to the elements of negligent design and of breach of the Defendant’s implied warranty that the Ranger was reasonably safe for its intended purpose. Jury Instructions 13-16, and 23-25. The Court further instructed the jury that if it found the Plaintiff contributorily negligent, and such contributory negligence was the proximate cause of her injuries, thеn she could not prevail on her negligent design claim. Jury Instructions 17 and 19-22. However, the Court cautioned the jury that evidence upon the question of whether the Plaintiff was not wearing her seatbelt could not be considered in determining whether she was contributorily negligent. Jury Instruction 18. The instructions from which the jury could have found the Plaintiff contributorily negligent were not based upon the evidence that she may not have been wearing a seаtbelt. As to the breach of warranty claim, the Court instructed the jury that if the plaintiff misused the motor vehicle, and such misuse was a proximate cause of her injuries and damages, then the jury should find for the Defendant. Jury Instructions 24 and 25. 3 Instruction 18 permitted the jury to consider the seat-belt evidence in deciding the misuse issue.
The Court FINDS that its jury instructions were proper. Therefore, the Court DENIES the Plaintiffs Motion for a New Trial on her second grounds. Accоrdingly, the Court FINDS that the jury’s verdict of June 2, 1999, was supported by the law and the evidence, and it DENIES the Plaintiffs Motion for a New Trial.
V. Conclusion
For the reasons set forth above, the Court FINDS that a hearing is not necessary to address the Plaintiffs Motion for a New Trial. The Court ORDERS that judgment be hereby entered for the defendant in accordance with the jury verdict.
*589 The Clerk is REQUESTED to send a copy of this Order to counsel for both parties.
It is so ORDERED.
Notes
. There was other evidenсe of Plaintiff's contributory negligence and misuse of the Ranger including evidence of both excessive speed for the road conditions and lack of control of the truck in a curve.
. The Court also found that DiPiziali was not qualified to testify as an expert upon the causation or exacerbation of injuries.
. Although the Court FINDS its instructions upon contributory negligence and product misuse proper, the special verdict form reveals that the jury found no negligent design or breach of warranty and did not consider contributory negligence and misuse of the product.