OPINION AND ORDER
The plaintiff, a child seriously injured in an automobile accident while seated in a child safety seat manufactured by the defendant, claims that the seat was defectively designed. It is claimed that the plaintiff struck her head on the front edge of the seat and that the seat should have had larger and padded side wings which would have prevented the injury. A jury found that the seat was not defective and the plaintiff has moved for a new trial, contending, among other things, that the verdict resulted from the defendant’s misconduct and was contrary to the weight of the evidence. For the reasons that follow, I must deny the motion for a new trial.
I
A. Events Surrounding Samantha Musicic’s Accident.
The plaintiff, Samantha L. Musick, suffered serious brain injury on March 28, 2009, when her family’s Windstar mini-van was rear-ended at an intersection. At the time of the accident, Samantha was five years old and seated in the middle row in a child safety seat called the Dorel Commuter High Back Booster (“HBB”) manufactured by the defendant Dorel Juvenile Group, Inc. (“Dorel”). Samantha’s mother and father were seated in the front of the mini-van, and her two older sisters were seated in the “wayback” seat of the vehicle. None of the other passengers were seriously injured in the accident.
Several days after the accident, the plaintiffs father, Earl Musick, traveled to the salvage yard where the wrecked Windstar was stored in order to retrieve personal belongings. At that time, Musick claims he had no plans for a lawsuit. He did not retrieve Samantha’s child safety seat, but took various photographs of it as well as the interior and exterior of the vehicle.
On April 7, 2009, Musick contacted attorney Shea Cook for legal advice and assistance. Cook faxed a letter to the salvage yard requesting that Samantha’s
Samantha later brought this lawsuit against Dorel seeking damages for her injury based on the alleged negligent design of the child safety seat, a failed duty to warn of its dangerous conditions, and breach of express warranties and the implied warranties of merchantability and fitness.
Prior to trial, Dorel moved to dismiss the case due to spoliation of evidence, arguing that the plaintiffs failure to preserve the vehicle was egregious and prejudicial. I denied the motion, finding that there was no reason for Samantha’s parents or her attorney to believe that the Windstar mini-van should have been preserved, since it was not the product at issue. Musick v. Dorel Juvenile Grp., Inc., No. 1:11CV00005,
B. Pre-Trial Discovery Issues.
As the early stages of pre-trial discovery unfolded, plaintiffs counsel was faced with several setbacks. First, plaintiffs counsel served a request for production on Dorel seeking all documents that discussed, related to, or contained reference to, the use of energy-absorbing materials on the side wings of the HBB. When the lead attorney for Dorel, Walter C. Greenough, responded that Dorel had no such documents, plaintiffs counsel filed a Motion to Compel.
A hearing on the Motion to Compel was conducted before the magistrate judge on July 15, 2011, during which attorney Greenough assured the court that Dorel had never considered adding foam to the side wings of the HBB. However, plaintiffs counsel presented documents that they had independently obtained from discovery taken in a similar case against Dorel, Cardenas v. Dorel Juvenile Grp. Inc.,
Consequently, Dorel produced additional documents, including a computerized depiction of the HBB with added foam, as well as a multi-page document showing that Dorel specifically considered pulling the HBB from the market to add foam to its side wings. Evidence that the HBB was in fact part of the PFP also came from the deposition testimony of at least three
Faced with this evidence, Samantha filed a Motion for Discovery Sanctions Based on Defendant’s Failure to Comply with Rule 30(b)(6) (ECF No. 95) and a Motion for Discovery Sanctions Based on False Statements by Defendant and Failure to Produce Documents as Ordered (ECF No. 128). At a hearing on the motions, Greenough admitted that his prior statements to the court were incorrect, stating that he had simply “forgotten” that the documents found in the Cardenas case file existed. Consequently, the magistrate judge granted a discovery sanction against Dorel precluding it from offering evidence as to why it chose not to add foam to the side wings of the HBB, a ruling that I later upheld. See Musick v. Dorel Juvenile Grp., Inc., No. 1:11CV00005,
C. Evidence At Trial.
At trial, Samantha contended that her HBB safety seat was defective, and that her injuries were caused when her head struck the unpadded front edge of one of the side wings of the seat. Dorel denied this, asserting that the HBB was not defective and that Samantha’s injuries were in fact caused when, as a result of the rear impact, her father came up and over the back of his front passenger seat and struck Samantha in the head.
With respect to the issue of causation, both parties offered ample evidence to support their respective theories. For instance, Samantha provided expert testimony from Dr. Joseph Burton and Dr. Stefan Duma that her injuries were caused when the left side of her head was struck by the front edge of the left side wing of the seat. (Tr. 25, Nov. 2, 2011; Tr. 17-21, 37-43, Nov. 9, 2011.) On the other hand, Dorel presented expert testimony from Dr. Catherine Corrigan that Samantha’s injuries were caused when, as a result of the rear impact, her father moved backward and collided with the left side of Samantha’s head. (Tr. 62-65, 79-80, Nov. 10, 2011.) Dorel also showed that testing conducted by Dr. Corrigan demonstrated that the risk of brain injury from hitting the side wing of the HBB was less than one percent. (Tr. 113, Nov. 10, 2011.) As discussed below, however, the jury ultimately did not reach the issue of causation because it found that the seat was not defective.
The undisputed evidence at trial established that, while the HBB was designed in 1997 with three-fourths of an inch of head foam, it was manufactured with no foam in the head area. (Tr. 81, 84, Nov. 8, 2011,
Over the course of the trial, Samantha provided an abundance of testimony on the issue of defect. Specifically, expert witness Gary Whitman opined that the HBB was defective for its failure to incorporate wider, padded sing wings. (Tr. 15, 29-30, 92, Nov. 8, 2011, morning.) Additionally, Samantha introduced evidence of scientific literature demonstrating knowledge in the child safety seat industry that large side wings and energy absorbing padding were necessary to provide good protection to children. (Tr. 27, 48-54, 70-73, 78-80, Nov. 8, 2011, morning; Tr. 112-13, Nov. 8, 2011, afternoon.) There was also evidence that head drop tests performed by Dorel in 2005 revealed that half an inch of expanded polystyrene (“EPS”) or expanded polypropylene (“EPP”) foam padding reduced the danger of head injury by one third. (Tr. 12-15, Nov. 8, 2011, afternoon.) Finally, testimony from Dorel’s marketing employees established that foam was an important element in consumer purchase patterns. (Tr. 48-49, Nov. 7, 2011; Tr. 137, Nov. 8, 2011, afternoon.) ■
Dorel countered Samantha’s evidence on the issue of defect with expert testimony from Dr. William Van Arsdell. Dr. Van Arsdell stated that the HBB’s design was reasonable and not defective, explaining why padding would not have improved the HBB’s performance in the accident at issue. (Tr. 189-90, 205, Nov. 11, 2011.) Do-rel also repeatedly noted that the HBB not only met, but greatly exceeded, the requirements of Federal Motor Vehicle Safety Standard 213 (“FMVSS 213”), the federal safety regulation with which all child safety seats must comply before they may be sold in the United States. Although Samantha argued that FMVSS 213 was irrelevant because it did not include a test for rear impacts, Dorel’s witnesses pointed out that this was because the National Highway Traffic and Safety Administration (“NHTSA”) determined that all seats would easily meet any such rear impact test. Furthermore, Terry Emerson, Do-rel’s Director of Quality Assurance, Child Restraint Systems, and Regulatory Affairs, described Dorel’s extensive testing of the HBB in frontal impacts at levels beyond those required by FMVSS 213 and explained that the HBB performed comparable' to safety seats with large, padded side wings. (Tr. 27-32, Nov. 11, 2011.)
At the conclusion of the evidence, the jury was instructed and sent to begin deliberations. The jury twice asked the court to answer questions better clarifying the issues concerning defect during deliberations. First, the jury asked whether they must decide “defect,” or whether it was sufficient to decide the case solely on the “cause” of Samantha’s injuries. I directed the jury that they must first decide the question of defect before addressing the cause of Samantha’s injuries. Several hours later, the jury asked the court to more clearly define “defect.” I declined and suggested that the jury consult the definition given by the court’s earlier instructions. After approximately six hours of deliberation, the jury returned a verdict for Dorel on the ground that Samantha had not proven by the preponderance of the evidence that the HBB was defective.
The plaintiff has moved for a new trial based on several different theories. The plaintiff argues that the trial was fundamentally unfair due to the defendant’s misconduct, that the jury verdict was contrary to the clear weight of the evidence ■ con
II
A. Fundamental Unfairness.
Samantha begins by arguing that the trial was fundamentally unfair due to many episodes of Dorel’s alleged willful misconduct before and during trial. Federal Rule of Civil Procedure 60(b)(3) permits the court to order a new trial if a party engages in fraud, misrepresentation, or other misconduct. See Fed.R.Civ.P. 60(b)(3). In order to establish that a new trial is warranted, the moving party “must (1) have a meritorious defense; (2) prove misconduct by clear and convincing evidence; and (3) show that the misconduct prevented [her] from fully presenting [her] case.” Tunnell v. Ford Motor Co.,
Applying these standards to the plaintiffs allegations, I find that a new trial is not warranted on this ground.
Samantha primarily argues that the trial was fundamentally unfair because Dorel allegedly manufactured trial testimony through Richard Glover to “explain away” its SMART Project. If Dorel had fraudulently manufactured or fabricated testimony, this certainly would be grounds for a new trial. However, I find Samantha’s allegations to be unsubstantiated.
As discussed, Dorel was sanctioned for initially failing to produce relevant documents related to the HBB. One of these documents included correspondence regarding the SMART Project, Dorel’s plan in 2003 to replace the preexisting HBB design with a so-called “SMART” booster seat with “impact foam.” Samantha claims that, while attorney Greenough indicated to the magistrate judge at the hearing on the motions for sanctions that the SMART Project was never implemented, defense witness Glover later testified at trial that the SMART Project was executed and that Samantha’s safety seat was actually the SMART booster. Samantha argues that Dorel “fabricated” this testimony in an attempt to suggest to the jury that Samantha’s HBB already had impact foam and thus, additional foam padding would not have prevented her injuries.
First, while it is true Glover testified that the SMART version of the HBB went into production (Tr. 100, Nov. 11, 2011), it is unclear whether attorney Greenough specifically stated that the SMART Project in its entirety was never implemented. At the hearing on the motions for sanctions, the magistrate judge questioned Greenough about a document related to the SMART Project:
THE COURT: Why was this document not produced in response to the request for documents dealing with consideration of foam being added to that High Back Booster?
MR. GREENOUGH: Because it was in the same package as the foam project. It was a project that never went anywhere so I had forgotten about it because it never went anywhere.
(Tr. 27, Oct. 12, 2011.) Greenough’s statement could be construed to mean that the PFP was never implemented, that the SMART Project was never implemented, or that any part of the SMART Project supposedly relating to energy-absorbing foam was never implemented. Therefore, I find that Samantha is unable to prove Dorel’s misconduct by clear and convincing evidence.
Consequently, Glover’s testimony regarding the SMART Project was largely immaterial to the issue of defect. In fact, Glover specifically stated that, although the SMART Project was implemented, EPS/EPP foam was never added to Samantha’s HBB safety seat:
Q Was EPP or EPS foam ever added to the high back booster seat?
A No, sir.
Q Did the Smart version of the high back booster seat with the new styling look ever go into production?
A Yes, it did.
Q Do you see it in court today?
A Yes, I do. Samantha’s seat was one of those seats.
(Tr. 100, Nov. 11, 2011.)
In order to grant a new trial based on alleged false testimony, there must be proof that without the false testimony, a jury might have reached a different conclusion. See Carnell Constr. Corp. v. Danville Redevelopment & Hous. Auth., No. 4:10CV00007,
Samantha next alleges that fundamental unfairness was caused by Dorel’s misconduct • during discovery. I disagree. While it is correct that Dorel initially failed to produce documents showing that the HBB was part of Dorel’s PFP, Samantha eventually obtained the concealed evidence. In fact, not only did Samantha acquire the information from outside sources, but Dorel later disclosed the documents pursuant to the magistrate judge’s order and far in advance of trial. Thus, Dorel’s pre-trial misconduct did not prevent Samantha from fully presenting her case, and she is unable to establish that a new trial is warranted on this ground. See, e.g., Tunnell v. Ford Motor Co.,
Furthermore, Dorel’s misconduct already has been substantially sanctioned. The magistrate judge granted a discovery sanction against Dorel precluding it from offering evidence at trial as to why it chose not to add foam to the side wings of the HBB. See Musick v. Dorel Juvenile
Samantha also claims that she was fundamentally prejudiced when Dorel allegedly violated the court’s pre-trial ruling concerning the fault of Albert Spicer, the driver of the vehicle that rear-ended the Musicks. Prior to trial, I granted Samantha’s Motion in Limine to Exclude Any Argument, Evidence, and/or Comment Concerning Albert Spicer’s Fault for the Accident and Other Legal Action Pursued by the Plaintiff (ECF No. 89), holding:
While the defendant may present evidence as to the facts of the accident such as the high speed of the impact, and his ... inattention as proof of that speed, it may not present direct evidence or argument of Spicer’s negligence. The facts of the accident may imply Spicer’s fault, but otherwise his fault is irrelevant.
(Tr. 17, Oct. 13, 2011.) Samantha argues that Dorel’s cross examination of her accident reconstruction expert, Ronald Kirk, as well as a portion of attorney Greenough’s closing argument, violated the court’s ruling.
I find that Samantha is unable to show any prejudicial misconduct by Dorel. Do-rel’s cross examination of Kirk did not elicit prohibited testimony, but simply brought forth evidence regarding the facts of the accident:
Q Did I understand your opinion, maybe you didn’t talk about this, did Mr. Spicer apply his brakes before he hit the Musick vehicle?
A He told me he did not, nor after.
Q Did Mr. Spicer engage any defensive steering maneuver at all before he hit the Musick vehicle?
A My understanding is he didn’t see the vehicle soon enough to do that.
Q At the time of this crash Mr. Spicer was not paying attention to the roadway; is that fair?
A That’s apparent, yes.
Q And Mr. Spicer couldn’t have been paying attention to the roadway at the time of this crash because he was doing something else at the time of this crash?
A I think that’s what he says.
Q Mr. Kirk, is it fair to say that a distracted driver is not always the best judge of his own speed?
A I think it’s fair to say that many drivers, whether distracted or not, are not a good judge of their own speed.
Q Mr. Kirk, you told us that Mr. Spicer was not paying attention to the roadway, correct?
A I have no firsthand knowledge of that. That’s what he told me. He told me he was texting, so apparently he was not paying attention.
(Tr. 160, 166-67, Nov. 1, 2011.) Kirk’s testimony that Spicer was inattentive and texting at the time of the accident was to establish that Spicer’s estimate of his
Additionally, counsel for Dorel’s argument in closing that the forces of the accident were the true cause of Samantha’s injuries, not Dorel’s safety seat, was not improper. Attorney Greenough simply argued, “if you must place blame, please place it where it belongs, and that’s not on Dorel. It’s on people like the guy who hit them, or it’s even on the front seat of their car for collapsing.” (Tr. 125, Nov. 14, 2011.) Spicer did not testify and his name was never mentioned during closing, and there is no evidence that the jury was confused as to the proper issues in the case, or otherwise distracted from its consideration of those issues. Moreover, the two questions submitted by the jury to the court during deliberations illustrate that it was focused strictly on Dorel’s liability, not that of anyone else.
Finally, Samantha argues that the trial was fundamentally unfair because she was prohibited from introducing evidence of two other lawsuits against Dorel involving claims of head injuries. This argument has no merit.
First, as I previously ruled in limine, the facts of the two other lawsuits that Samantha sought to introduce at trial — the Uxa and Coyle cases — were not substantially similar to the incident in question, making them irrelevant. See Musick v. Dorel Juvenile Grp., Inc., No. 1:11CV00005,
B. Verdict Contrary To Clear Weight Of The Evidence.
Samantha also seeks a new trial under Federal Rule of Civil Procedure 59(a)(1)(A), claiming that the jury’s verdict is contrary to the clear weight of the evidence concerning defect. Rule 59(a)(1)(A) provides for the grant of a new trial “for any reason for which a new trial has heretofore been granted in an action at law in federal court.” Fed.R.Civ.P. 59(a)(1)(A). The Fourth Circuit has elaborated by stating that a new trial may be granted if “[1] the verdict is against the clear weight of the evidence, or [2] is based upon evidence which is false, or [3] will result in a miscarriage of justice.” Atlas Food Sys. & Servs., Inc. v. Crane Nat’l Vendors, Inc.,
Applying this standard to the plaintiffs allegations, I find that the jury’s verdict is not against the clear weight of the evidence concerning defect.
Samantha argues that the clear weight of the evidence established that the HBB was defective for its failure to incorporate wider, padded side wings. She points to expert testimony from Gary Whitman, scientific literature, consumer expectations, and head drop tests performed by Dorel, all of which were presented at trial to show that there were obvious safety bene
C. Improper Jury Instructions.
Lastly, Samantha argues that a new trial should be granted because of erroneous instructions to the jury. “The test of the adequacy of jury instructions is whether the jury charge, construed as a whole, adequately states the controlling legal principle without misleading or confusing the jury.” Chaudhry v. Gallerizzo,
It is easy enough to pick at words, phrases, and sentences in a charge, but that overlooks the fact that the charge in its totality was what the jury heard. A jury verdict, moreover, represents a good deal of work on the part of a good many people, and the instructions undergirding that collective effort should not succumb lightly to semantic fencing.
After careful consideration, I find that the jury instructions given in this case were properly supported by the evidence and the law.
Samantha first challenges a portion of the court’s Instruction Sixteen:
A product is not required to have all possible safety features, and a manufacturer is not responsible for a consumer’s decision to purchase a product that reasonably omits a safety feature.
(Final Jury Instructions p. 18.) She claims that the second clause of this instruction was contrary to the evidence at trial and failed to offer significant guidance on what was “reasonable” conduct by a manufacturer. Neither of' these arguments have merit.
First, Samantha claims that Instruction Sixteen was not supported by the evidence at trial because her mother, Amy Musick, never made a “decision” to purchase a car seat without a safety feature. This argument is based on Amy Musick’s testimony that she did not remember seeing car
Samantha also claims that the jury could not understand what made the omission of a safety feature “reasonable” in the absence of an instruction defining reasonableness as a risk/utility calculus. I disagree. It is entirely proper to submit instructions to the jury that simply ask for a determination of whether conduct was reasonable. See Noel,
Next, Samantha claims that Instruction Fifteen was erroneous. Instruction Fifteen advised the jury as follows:
In determining what constitutes an unreasonably dangerous defect, you may consider, among other things, the existence of a safer alternative design of the product. 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.
(Final Jury Instructions p. 17.) Samantha argues that this instruction explains an exception to a manufacturer’s duty to adopt alternative designs, without properly stating when a manufacturer is required to adopt an alternative design.
I disagree with this contention. Under Virginia law, a manufacturer has a duty to design a reasonable product, not an “accident-proof one.” Turner v. Manning, Maxwell & Moore, Inc.,
Samantha also challenges Instructions Eleven and Twelve:
INSTRUCTION NO. 11: A product is defective if it is proved by a preponderance of the evidence that the product was unreasonably dangerous for the use to which it would ordinarily be put, and that the unreasonably dangerous condition existed when the product left the manufacturer’s hands.
INSTRUCTION NO. 12: A product is unreasonably dangerous if it is unreasonably dangerous in design, or unaccompanied by adequate warnings concerning its hazardous properties.
(Final Jury Instructions p. 12-13.) She argues that these instructions confused the jury by offering a “circular” definition of defect. However, Samantha complains of only general inadequacy and fails to suggest any alternative definitions. In any event, the instructions given were appropriate. Instruction Eleven introduced the concept of “defect” as established by Virginia law, see, e.g., Logan v. Montgomery Ward & Co., Inc.,
Additionally, Samantha argues that the court should have offered her proposed instructions regarding the relevance and meaning of compliance with FMVSS 213. Samantha’s proposed instructions stated:
PLAINTIFF’S INSTRUCTION NO. 27: Compliance with regulations and standards required by the National Highway Traffic Safety Administration (“NHTSA”) shall be no defense to Samantha’s common law claims.
PLAINTIFF’S INSTRUCTION NO. 28: Compliance with the minimum federal testing standards is not evidence that the government has certified a product is safe....
(ECF No. 264, p. 6-7.)
I find that Samantha’s proposed instructions were properly rejected. Courts are not required to give all instructions suggested by either party. See Hardin
Furthermore, the jury was given a proper instruction regarding the relevance of government safety standards:
INSTRUCTION NO. 16A: In determining what constitutes an unreasonably dangerous defect, you 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.
(Final Jury Instructions p. 19.) This instruction was legally correct and appropriately allowed the jury to determine how much weight to place on the HBB’s compliance with FMVSS 213 after hearing all of the evidence presented at trial.
Lastly, Samantha argues that the court’s instructions improperly collapsed her three theories of liability into a single concept of “defect,” depriving her of the ability to seek recovery under the various alternatives available under Virginia law. This argument has no merit. Because I dismissed her express warranty claim, Samantha was left with only two separate causes of action — implied warranty and negligence. It is settled law in Virginia that the elements of a product liability claim are “essentially the same whether the theory of liability is labeled warranty or negligence.” Jeld-Wen, Inc. v. Gamble,
As a final note, I must reiterate the fact that Samantha bears a “heavy burden” to show not only that a jury instruction was erroneous, but also that the error seriously prejudiced her case. Noel,
Ill
Of course, Samantha’s condition is heart-rending, and it is impossible not to have the deepest sympathy for her and her family. Nevertheless, the verdict of a jury must be respected, U.S. Const, amend. VII, and I find no legal basis whereby I might set aside the verdict in this case. Accordingly, it is ORDERED that the plaintiffs Motion for a New Trial (ECF No. 307) is DENIED.
Notes
. At trial, I entered judgment for the defendant on the express warranty claim.
. The term "Protective Foam Project” has been used throughout this case to describe a project undertaken by Dorel in 2002 in which it considered adding protective foam to the side wings of all of its child safety seats manufactured for distribution in the United States.
. Plaintiff's counsel later provided the court with a timely statement seeking fees and expenses in the amount of $208,510.79. The magistrate judge granted an award of fees, but only in the amount of $24,215.85. Both parties have objected to the magistrate judge's order, and I will address these objections in a separate opinion.
. As previously discussed, the HBB never received EPS/EPP foam as part of the PFP.
. Samantha argues that she should have been allowed to introduce evidence before the jury establishing the factual foundation that led to the discovery sanction. However, I find that such evidence is collateral and would have served only to distract the jury from the main issues at trial.
. Samantha also alleges that the cases cited by Dorel in support of Instruction Sixteen are inapplicable. However, this argument also has no merit. In Austin v. Clark Equipment Co.,
. Plaintiff's counsel initially submitted an affidavit of the jury foreman, Steve A. Pope, in support of Samantha’s Motion for a New Tri