*1 Indeed, performance. decline his work testimony that Blake
the credited BARRON, Plaintiff-Appellant, Tina Bauldry’s performance. praised work Second, Blake testified that he based his FORD MOTOR COMPANY Bauldry Bauldry’s decision to terminate LIMITED, OF CANADA cards,” he claimed showed a “work Defendant-Appellee. performance period over the decrease No. 90-3278. July company, from to December. The Appeals, United States Court however, failed to offer these records Seventh Circuit. support position. of its As the Board cor noted, company’s pro rectly failure Argued Jan. 1992. duce the cards “leads to an inference that May Decided 1992. the cards would not have buttressed [Ad- position or indeed would have un vancers dercut it.” D & 0 at 3. Golden State See NLRB, 168, 174,
Bottling U.S. Co. (1973). L.Ed.2d 388
94 S.Ct. NLRB, Mallory
See also P.R. Co. Cir.1968), denied,
F.2d cert.
394 U.S. 89 S.Ct. L.Ed.2d 452
(1969) (“[FJailure produce
which under the circumstances would be
expected, gives presumption rise to a it.”). party failing produce conclude, Board,
We as did Bauldry regarding his decision
AU based legal
on an incorrect conclusion. Advance preponderance
failed to show discharged have
evidence would regardless participation
Bauldry reason,
protected activity. For that never shifted back to General
burden Thus, contrary to the con-
Counsel. AU’s
clusion, required to he was not rebut company. offered
evidence Wright
General Counsel met his Line bur-
den, company while the did not. reasons, the the Na-
For these order of
tional Relations Board is Labor
Enforced. *2 Fleming, Grawey, &
Richard E. Cusack Stanley M. Peoria, Ill., Bandklayder, Dan Miami, Fla., plain- for (argued), Rosenblatt tiff-appellant. McKen- Morrissey, D. Baker &
Francis Ill., Bertschy, zie, Nicholas J. Chicago, Peoria, Ill., Allen, Royster, & Heyl, Voelker Co., (argued), Ford Motor M. Thomas John Mich., Counsel, Dearborn, of Gen. Office defendant-appellee. for EASTERBROOK, POSNER, and Before RIPPLE, Judges. Circuit POSNER, Judge. Circuit para- Barron, rendered age was Tina the welfare rolls as forced onto plegic and in 1984 which of an accident the result (driven by her riding in she was the car highway in sister) rain-slick on a skidded Because turned over. (al- wearing a seatbelt Barron though equipped car seat- the different states. International Ad belts), car, flung she was either ministrators, out of the Inc. v. Ins. Life claims, through the closed as she (7th Cir.1985). F.2d 4n. There passenger’s or the window on the might seem to be all the difference seat, side of the front which was also world between negligence and strict liabili *3 Although Illinois, closed. a citizen of Bar- ty, in products but a liability case this often brought ron suit Ford Motor Com- is not plaintiff true. The prove must either Canada, pany of the manufacturer of the product the was defective or that it car, in a Florida parties state court. The was unreasonably dangerous, and in deter being of citizenship diverse and Ford not a mining product whether a is “defective” or Florida, citizen of Ford was able to remove “unreasonably” dangerous court Florida, the case to federal district court in weighs just costs and benefits as it would sought case, from which it to transfer in negligence do case. See Flaminio v. grounds convenience, of 28 U.S.C. Co., Honda Motor 463, 467 1404(a), to the Eastern District of North § Cir.1984), and references cited there. The plaintiff Carolina. The countered with a difference between grounds the two of lia request to transfer the case to the Central bility bites when the being defendant Illinois, request District of and her was product sued for a defect created granted and Apply- the case transferred. component that he had bought, and he ing (and Florida’s rules on conflict of laws could not negligence be sued for because Ferens v. John Deere anticipating thus he used all due in buying, care inspecting, Co., 516, 494 U.S. 110 S.Ct. 108 it, and installing so that he was without (1990), L.Ed.2d 443 which holds that yet blame is liable liability nonetheless if apply transferee court must the conflict of Id. That strict. is not an issue in this jurisdiction laws rules of the transferor case. buy sunroof; Ford did not whether the plaintiff defendant or the re- manufactured, designed, and installed it. quested transfer), Judge Mihm ruled that the law of North hap- Carolina —as it appears So this to be a case of a pens, only state in the United States conflict; choose, false if but he had to recognize not to strict liability products in Judge right apply Mihm was to Car North cases, Corp., Smith v. Fiber Controls 300 (as olina plaintiff law rather than 669, 678, N.C. 268 S.E.2d urges) Illinois law. It is true that Barron Colombo, (1980); Warren N.C.App. 93 was a citizen of Illinois before she made a (1989 ) —gov visit of several months’ duration to her erned the in substantive issues the case. Carolina, in sister North in the course (C.D.Ill.1989). F.Supp. A two-week occurred; which the accident and after a trial, plaintiff in which the tried to period hospitalization brief in North Car prove ejected through that she had been Illinois, olina she returned to where she negli sunroof and that Ford had been today, public charge. remains And it is gent making the sunroof out of tem (or true that Ford of Canada for that mat pered glass, rather than laminated ended ter parent) its American is not a citizen of a verdict for Ford. North But in Carolina. Florida as most (for states remember that it is Florida con argues begin
Barron principles govern flict of laws applied law, should have Illinois case), despite the inroads that “interest imposes liability which strict in products analysis” significant and “most cases, law, relation rather than North Carolina ship” inquiry simplicities have made on the requires plaintiff prove negli principles, gence. the old common law conflicts easy It is not to see what differ presumption remains that the law of ence this would have made to the outcome case; entangling and before the state which the accident occurred itself messy governs arising issues of conflict of tort claims from the acci laws a court Specialty dent, Bishop v. Florida Paint ought satisfy itself actually that there (Fla.1980); State a difference between the relevant laws of 389 So.2d prosecution identify forbidden to would be Ins. Co. v. Ol Mutual Automobile Farm (Fla.1981), weapon al to do so would sen, the murder 406 So.2d presumption is rebuttable. though the that the defendant had not been show Stores, Budget Rent-A- Inc. wearing Wal-Mart his seatbelt. (Fla.App. Systems, 567 So.2d Car reading The literal of the statute —more 1990). is concerned an acci That state rule that point, to the of the common law party if neither is a resident— dent even it, preceded at least as the under- this, where one clearly so in a case such as out stands that rule—would thus rule accident, albeit not to parties to the did, presenting as it Ford’s lawsuit, a resident of the state wearing Tina Barron her seatbelt sister). princi (Tina And its tort Barron’s It is true that when the accident occurred. *4 by familiarity with may informed ples be focus, this was not the at least not conditions, is another reason to local focus, testimony about seat- nominal than the tort apply principles those rather point merely that belts. Ford’s plaintiffs or the defendant’s law of part of the provision of seatbelts was a Baxter, F. “Choice of domicile. William system, automobile’s overall restraint so System,” and the Federal 16 Stan. Law making the reasonableness of the sun- (1963). L.Rev. tempered roof of rather than of that Bar A further reason doubt part a function in of the other placed disadvantage at a ron was prevent occupants steps Ford had taken to application of North Carolina law to her being flung But could not from out. it is that it is North Carolina law ease argument indicating that make the without ground appeal her with the of she arms seatbelt, wearing Barron had not been her strongly presses most —that kept if she had and it had not since been any have let Ford introduce should not flying through the sunroof Ford’s her from use because North evidence about seatbelt system argument about its total restraint rule, strong has a common law Carolina flat on its face. would fall statute, codified that evidence now interpretation of North Car- The literal is inad plaintiff a didn’t fasten seatbelt certainly in- almost though, olina’s is any Hagwood in civil action. v. missible Brewer, 328 N.C. correct. In 513, 516-17, State Odom, N.C.App. S.E.2d (1991), prosecu- a be, (1988). may This as we murdering her disabled tion of a woman for see, statement of the shall an overbroad rule; daughter by abandoning her car with yet the statute law common case, crossing, railroad (which daughter in it on a applicable to this how is re- ever, Supreme the case arose before its ef Court of criticism, date) marked, introduction further than the goes fective even without provides daughter it. it knew how to rule as we have stated For of evidence that seatbelt; to wear a seat belt it never occurred to that “evidence of failure release her any might or inad- anyone shall not be admissible criminal that such evidence be action, trial, proceeding except in an or civil missible. of this section.” action on a violation based under North If it were inadmissible 20-135.2A(d) (emphasis N.C.Gen.Stat. § moreover, help law, might not this Carolina added). question is a man The section diversity plaintiff in this case. Even law, and evidence of nonuse datory seatbelt applied in feder cases the rules of evidence proceeding introduced in a can of course be rules of evidence al courts are the federal law. penalty for violation of the impose rules, Lovejoy Electron rather than state literally, is read that is But if the statute O’Berto, ics, 873 F.2d Inc. proceeding in which such only type (7th Cir.1989); Disaster In re Air Crash So if an irate can be introduced. evidence (7th 1189, 1193 701 F.2d belt, Chicago, it Near ripped off his seat tore passenger Parman, Cir.1983); strangle Romine moorings, and used it to from its Cir.1987), respect to save with driver, ensuing trial the in the murder presumptions, privilege,
matters of and inference predominant that its character is witnesses, competency that of a rule Fed.R.Evid. of evidence. 501, 601, none of which is involved here. If choosing In between a broad and a nar- North Carolina’s rule the admission interpretation row we must why consider testimony failure to wear one’s defendant would want to introduce evi- evidence, inapplica- seatbelt is a rule dence of a failure to wear his case;
ble
and there is no counter-
purpose
seatbelt. The
would not
part
the federal law of evidence.
plaintiff
show that the
was contributorily
negligent. Wearing a seatbelt does not
Well, but is it a rule of evidence for
likely
make it
you
less
will have an
doctrine,
purposes of the Erie
or is it a
accident—it
likely,
could make it more
at
binding
substantive rule and therefore
in a
driver,
you’re
least if
by making
you
(or
diversity
any
case
other
case which
purpose
feel safer. The
of the evidence
supplies
decision)?
state law
the rule of
would be to show that the
failed to
pure
The
A
difference is this.
rule of
take reasonable measures to reduce the
pure
procedure,
like a
rule of
severity of the
if
accident
one occurred.
solely
accuracy
concerned
and econo-
duty
(which
to take such measures
my
litigation
and should therefore be
closely related to the
duty
contract
of miti-
*5
capacities
tailored to the
and circumstances
gation
damages) goes
by the name
particular judicial system,
here the
consequences.”
“avoidable
Brooks v. Alli
one;
federal
while a
substantive
is
Division,
489,
(7th
son
874 F.2d
490
Cir.
channeling
concerned with the
of behavior
1989); Tacket
Corp.,
v. General Motors
courtroom,
outside the
and where as in this
1042,
(7th Cir.1987).
836 F.2d
1047
It is to
regulated
case the
in question
behavior
fastening
that doctrine that evidence of not
by
law,
state
rather
law
than
federal
primarily
one’s
seatbelt
relevant. Miller
govern
state law should
even if the case
Miller,
228, 239-40,
v.
273 N.C.
160 S.E.2d
happens to
inbe
federal court. Massachu-
65,
(1968);
74
Corp.
Evra
v.
Bank
Swiss
Brei,
setts Mutual
Ins.
v.
311 F.2d
Co.
Life
(7th Cir.1982);
Corp., 673 F.2d
958
(2d Cir.1962);
Guy
465-66
Olin
Well-
Transit,
Mays
Inc.,
v. Dealers
441 F.2d
III, “The
born
Federal Rules of Evidence 1344,
(7th Cir.1971).
Application
and the
of State Law in the
accept
courts
the doctrine of
con
avoidable
Courts,”
Federal
55 Texas L.Rev.
sequences,
apply
but hold that it does not
(1977).
The North Carolina rule could
Miller,
to the use of seatbelts. Miller v.
either.
be
It is a rule of evidence if it is
239-40,
supra,
Hagwood 191-92, 516-17, glass open at the clear at down of an window is no re- com of North Carolina’s might est articulation It therefore straint. be sensible against seatbelt mon law rule make the windshield out of laminated evidence is inadmissible holds not such (if fact, glass glass is in as the only it is inadmissible all issues but plaintiff argues, likely more to contain the to exer plaintiffs failure to establish occupants tempered in an accident than consequences care to minimize the cise due glass), because the windshield cannot be occur. Hagwood should one of an accident anyway, opened but not to make the sun- right, Judge Adams was and his shows glass. out of laminated Even the roof choice of laminated Volkswagen wrong, in Seese brethren glass for the wind- (3d A.G., F.2d Cir. werk questioned, could since an occu- shield 1981); (dissenting opinion). at 852-54 id. severely injured by being pant could be evi held that North Carolina That case rigid pane hurled of —which of a seatbelt is inad dence of the nonuse way saying is another that a seatbelt is only to show that the missible not superior very method of restraint. The failing to fasten his had been careless people pay a sunroof—for idea that provision to show that the seatbelt but also they open it in precisely extra so that can option was a reasonable of the seatbelt part good weather—is of a car’s restraint plan protecting component of an for overall system fantasy, elements of has and the consequences of a occupants from the readily argu- counsel conceded at The court in did not have the crash. Seese people ment that don’t think these terms. which was decided Hagwood, benefit of events, presence At all of a seatbelt later, shows that the ma years and which least system is at relevant to the manufac- wrong jority guessed Seese *6 turer’s effort to show that he used due add that the stat rule. We North Carolina (or, language liability, in care the of strict itself, speaking “evidence of fail in of ute design defectively) not the car did ,could belt,” seat well be ure to wear a danger occupant’s regard to the of an be- referring thought to to evidence accident; ing in the an and ejected event of equipped with seatbelts. the vehicle was regardless is of the doctrine of avoid- this understanding scope of the of If our consequences. able correct, rule is then the rule substan the people many It is true that don’t use tive, right; it is founded on the desire of all seatbelts, easy the manufac- no matter how penalize not to the North Carolina courts is, indeed, make their use. That the turers seatbelt, the failure to fasten one’s because of the North rule. basic rationale Carolina rampant in the state that the nonuse is so seemingly of auto- The irrational distaste thought not be care average person could “buckling up” one occupants for mobile failing his seatbelt. Mil for to fasten less major forces the call for behind 232-34, Miller, 273 N.C. at supra, ler v. restraints,” airbag. “passive such as the understood, But, so at 69-70. 160 S.E.2d may duty that the of care is We assume cases, rule, applicable diversity in the while shaped by propensities, known customers’ Ford’s use of seatbelt evi does not cover might think of them from an whatever one purpose was not to The dence this case. standpoint; prudential ethical or mitigate failed to Tina Barron show that settings proof” even “idiot could be a some the accident to consequences of but the law, cf. doctrine of tort Estrada Ford had been reasonable show that Co., 734 F.2d Mfg. Schmutz of deciding the sunroof out not to make Cir.1984), by extrapolation from the rule provided glass it had as it laminated —that potential injurer to take requires form of seat- backup system the were when children are special precautions point the more put One could belts. vicinity. and in the Prosser known to be for an auto strongly. It would be careless pp. at Torts open- Keeton on the Law rely upon an § manufacturer to mobile of 5th ed. (W. Page Keeton et al. eds. part window, as of able such as a balancing judgment, pro- This sort of say that Ford’s 1984). just But this testimony against the costs provided a seatbelt bative value it had evidence muddying against type protracting the trial and main defense system as its issues, imponderables best in this case was not involves that occurred injury spot, weighed by judge The on the not the of due care. on the issue conclusive appellate panel. Shapiro, it was barred United States question is whether (9th Cir.1989); not. Either 879 F.2d United rule. It was Martinez, (2d inapplica- is a substantive States the rule Cir.1985). ask, we not whether we (partial) defense So limited to ble because ruling, think we have made the same consequences, or an evidentia- would of avoidáble judge reasonably. inapplicable pro- whether the acted therefore but ry rule and way, attempted reha- Either the He did. Even without ceedings in federal courts. (as us) bilitation, it seems to admissible. seatbelt evidence was likely had been as to infer that witness separately plaintiff complains The judgment disagreeing for with Ford’s fired issue un harped on the seatbelt that Ford use in the type what example by asking plain mercifully, for he Ford sunroof as that had turned edu taken a driver’s whether she had tiff being lousy it had fired him for the use of seatbelts cation course which employee. And the allowed (her yes). explained answer was had been place any in evidence memos plaintiff to up for lawyer set her But the on the man written while at Ford had auxiliary An damaging inquiry. line of tempered subject of laminated versus Ford should her case was that theory of put in letters he had glass, and she some occupants the car that the have warned powers of concerning the retention written in and that hold them sunroof wouldn’t in the Pinto. the windshield fasten their seat- they therefore should Co., 260 Stegall v. Catawba Oil belts. issues but appeal raises other (1963); N.C. merit to warrant only one has sufficient du Pont de Nemours & Ziglar v. E.I. question relates to the discussion. It 147, 151, 280 S.E.2d N.C.App. ejected through the Barron was whether this issue for (1981). It relevant to passenger window. or sunroof any need show that Barron didn’t Ford to thought have been *7 Why this should dangers of not fasten warnings the the outcome potential difference to make a all she had learned ing her seatbelt because unclear, presum trial is a little since of the in the driver’s ed course. about that was made ably passenger the window Ap despised tempered glass as well. judge the whether the Another issue is that theory was parently, though, Ford’s plaintiff’s lawyer the should have allowed shattered passenger had been plaintiff’s wit the window of the to one rehabilitate and Barron turning over as the car was nesses, employee of Ford who a former empty space, through the had thrown safety’s the sunroof been that for sake testified struck that she had theory her was glass. while made of laminated should have been intact, her and it was still brought the the sunroof while Ford out cross-examination On it, might not fired, head had shattered employee had that this been fact lami made of happened had it been the have argues—allowed which—the testimony that glass. presented testifying nated She linger that his impression to pas the had smashed workers in motive. the rescue retaliatory against Ford was oc the accident senger window—after show that fact plaintiff wanted to The if scotched curred—testimony that believed blowing fired for employee had been the presented evidence theory, Ford and practices. Ford’s Ford’s unsafe the whistle on plain the witnesses One of attempted contra. allow the judge The refused to a state to call was lawyer wanted tiff’s it would He feared rehabilitation. determining the expert in an trooper who is this into a trial of whether turn the trial He would accidents. highway causes of wrongful. discharge had been man’s glass was safer in the lieved that the sunroof was testified have tempered glass. respect than relevant shattered, was found on Tina Barron meant says that sunroofs sense Common road, the rescue workers and side of the restrain built to an opened need be window, be passenger the front had broken to fasten her seat- occupant who declines through car have she must exited belt. this refused allow judge The sunroof. was ground that there
testimony on the Affirmed. it; trooper all nothing “expert” about logical making an obvious doing concurring. RIPPLE, Judge, Circuit by oth- furnished premises from deduction the court and judgment of join I er witnesses. reasoning of the essential concur witness, expert for an commonplace It is majority. thoughtful opinion filed eyewitness, to testi- all an is not after who in this case clear- issue The choice of law premises supplied the basis of fy on Ferens governed by the ly is expertise to their adds He such witnesses. 110 S.Ct. Deere U.S. John opinion up with an evidence and comes and, (1990), under 108 L.Ed.2d An in the case. bearing issue on some rules are choice law Florida to offer an allowed expert is a witness clearly point rules applicable. Those trooper 702. This opinion. Fed.R.Evid. jurisdiction as the whose North Carolina ruled, and expertise, used no This choice of applies. law law substantive testify allowed could not be therefore view, is, quite clear-cut and can my issue ejection from the plaintiffs of the the route definitively deciding be made without car. law is negligence whether true things too fine. It is cutting liability That is law. In Illinois strict as same if a realistic sense logical view, question in a but not is a far more this latter my believed, the con- were acknowl- my the rescue workers than brothers one difficult gone had a shorthand majority that Barron also offers edge. clusion The ineluctably. But conceiv- nuanced and sub- approach sunroof followed to the difficult highly thought dichotomy it Rail- might have of Erie ably stance-procedure sail U.S. S.Ct. Tompkins, someone could improbable that road Co. (1938). While the lead and would L.Ed. through the testimo- “in the courtroom—out brightline rescue workers’ to doubt the them my suggested by testimony, simplistic as distinction courtroom” ny. trooper’s understanding may helpful would sophisticated, colleagues might to the it seem us, hardly provides ade- A before the case concern. veteran alleviated that have policy investiga- quately for all the constitutional of accident literally thousands the Erie doctrine. that animate concerns testimony have tions, would bolstered view, clear, Here, my that the quite it is theory of plausibility *8 matter of is a sub- Carolina rule North should occurred. He how this accident agree merits, I stance. On testify, Ford’s have been allowed Carolina seat belt that the North majority tried to undermine have lawyer could then preclude evidence intended to not cross-examination testimony on a device makes it presence of such that the res- on the dependence showing its crucial in a to use reasonable had con- Ford cue workers’ clearly is limit- The seat belt rule sunroof. troverted. of non-use in consideration precluding ed to error, but, many as with So there plaintiff used due determining whether Even harmless. evidentiary rulings, it was consequences of an minimize the care to testimony, if, trooper’s given accident. had that Barron sure would have been highly un- it is gone brought in a have they would likely that evidence of Ford’s for her.
verdict weak, be- even if one very
negligence was