                           NOT FOR PUBLICATION                            FILED
                    UNITED STATES COURT OF APPEALS                         JUL 25 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                        U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

NICOLE THOMPSON,                                No.    15-17074

                Plaintiff-Appellee,             D.C. No.
                                                2:09-cv-01375-JAD-PAL
 v.

TRW AUTOMOTIVE U.S. LLC, a                      MEMORANDUM*
Delaware corporation,

                Defendant-Appellant.

                   Appeal from the United States District Court
                             for the District of Nevada
                   Jennifer A. Dorsey, District Judge, Presiding

                        Argued and Submitted July 14, 2017
                            San Francisco, California

Before: GRABER and FRIEDLAND, Circuit Judges, and FOGEL,** District
Judge.

      TRW Automotive U.S. LLC (“TRW”) appeals from the denial of its motions

for judgment as a matter of law and for a new trial after a jury found in favor of

Nicole Thompson in her product liability action against TRW. TRW argues that


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
            The Honorable Jeremy D. Fogel, United States District Judge for the
Northern District of California, sitting by designation.
(1) the district court should have used a risk-utility instruction; (2) the court should

have used a but-for causation instruction; and (3) substantial evidence does not

support a conclusion that the airbag’s failure to deploy caused Thompson’s

injuries.

       1. The district court did not err by failing to use a risk-utility instruction

because Nevada has not adopted the risk-utility test in design defect product

liability cases. Instead, Nevada courts use the consumer-expectations-based test

articulated in Ginnis v. Mapes Hotel Corp., 470 P.2d 135 (Nev. 1970). The district

court used this test to instruct the jury, and its instruction mirrored Nevada’s

pattern jury instruction.

       2. Thompson and TRW presented mutually exclusive theories of causation

for Thompson’s injuries: Either Thompson’s head hitting the visor upon contact

with the pole caused her neck injury—and the airbag could have prevented this

injury had it deployed—or her chin hitting the steering wheel upon contact with the

curb caused the injury, and any later deployment of the airbag would not have

prevented the injury. Because the theories were mutually exclusive, the district

court should have given a but-for causation instruction. See Wyeth v. Rowatt, 244

P.3d 765, 778 (Nev. 2010). Nevertheless, because the parties presented the

theories to the jury as mutually exclusive and evidence supports Thompson’s

theory, it is more probable than not that the jury would have returned a verdict for


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Thompson even if the court had used the but-for causation instruction. The error

was thus harmless.

      3. Substantial evidence supports the conclusion that a design defect in the

airbag electronic control module caused Thompson’s injuries. At trial, witnesses

explained how airbags operate, what they are intended to do, and why they would

be expected to deploy in the collision at issue. Witnesses also described how the

collision with the pole caused Thompson’s injuries. Given the testimony regarding

the purpose and operation of airbags and the evidence that the pole collision caused

Thompson’s injuries, substantial evidence demonstrates that, had the airbag

deployed during the collision, Thompson would not have suffered worse injuries

and in fact would have sustained less severe injuries. Moreover, substantial

evidence shows that Thompson’s failure to wear her seatbelt or a defect in the

seatbelt was not a superseding intervening cause of her injuries.

      AFFIRMED.




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