           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                   Fifth Circuit

                                                                            FILED
                                                                           May 27, 2011
                                       No. 10-50534
                                                                           Lyle W. Cayce
                                                                                Clerk
JACOB A. BROCHTRUP,

                                           Plaintiff - Appellee,

v.

MERCURY MARINE, a Division of Brunswick Corporation; SEA RAY, a
Division of Brunswick Corporation,

                                           Defendants - Appellants.



                   Appeal from the United States District Court
                        for the Western District of Texas
                              USDC No. 1:07-cv-643


Before DAVIS, CLEMENT, and ELROD, Circuit Judges.
PER CURIAM:*
       Jacob Brochtrup was severely injured after his leg made contact with the
spinning propeller of a boat engine. He sued the manufacturers of the engine
(Mercury Marine) and of the boat (Sea Ray) in Texas alleging that the engine’s
propeller was defectively designed. Mercury Marine and SeaRay moved for
judgment as a matter of law. The district court denied their motions and
Brochtrup ultimately obtained a favorable jury verdict. We AFFIRM.


       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
                                        10-50534

                           FACTS AND PROCEEDINGS
      Brochtrup and three others were on Lake Austin in Texas on a 17.6-foot
ski boat manufactured by Sea Ray and powered by a 135-hp MerCruiser stern
drive enginenalso referred to as an inboard/outboard enginenmanufactured by
Mercury Marine.1 The engine or stern drive engine includes a propeller that is
hydraulically lowered into and raised out of the water for use. The boat was in
the water with one person driving, two in the water waiting to be towed on
wakeboards, and Brochtrup as a passenger.               When one of the tow ropes
unhooked from the boat and fell into the water, Brochtrup jumped in behind the
boat to retrieve the rope. The driver put the boat into reverse to stop its forward
motion and backed over Brochtrup. The boat’s spinning propeller shredded
Brochtrup’s right leg, which was ultimately amputated at the hip joint.
      Brochtrup filed suit against Mercury Marine and Sea Ray (collectively,
“Mercury Marine”) in Texas state court alleging a design defect in the boat
because of its use of an unguarded propeller. Mercury Marine removed the suit
to federal court based on diversity jurisdiction. The case proceeded to trial three
times. The first two juries were unable to reach a verdict; the third concluded
that there was a design defect and awarded damages to Brochtrup. Mercury
Marine moved for judgment as a matter of law at the conclusion of Brochtrup’s
case, at the conclusion of its own case, and again after the verdict. The district
court denied each of the motions. Mercury Marine also objected to the jury
instruction on the elements of a Texas design defect claim, offering the court two
alternative instructions. The court overruled its objections. Mercury Marine
appeals the denial of judgment as a matter of law and the jury instruction issue.


      1
          Mercury Marine and Sea Ray are both divisions of Brunswick Corporation.

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                              STANDARD OF REVIEW
      This court reviews a motion for judgment as a matter of law de novo.
Cooper Indus., Inc. v. Tarmac Roofing Sys., Inc., 276 F.3d 704, 707 (5th Cir.
2002). Judgment as a matter of law is appropriate where “a party has been fully
heard on an issue during a jury trial and the court finds that a reasonable jury
would not have a legally sufficient evidentiary basis to find for the party on that
issue.” FED. R. CIV. P. 50(a)(1). In reviewing the motion, the court must consider
the evidence in the light most favorable to the non-movant and draw all
reasonable inferences in his favor. Reeves v. Sanderson Plumbing Prods., Inc.,
530 U.S. 133, 150 (2000). When a party objects to a jury instruction before the
district court, this court reviews the court’s instruction for abuse of discretion.
Carrizales v. State Farm Lloyds, 518 F.3d 343, 348 (5th Cir. 2008).
                                     DISCUSSION
A.    Mercury Marine’s Motion for Judgment as a Matter of Law
      To recover on a design defect claim in Texas, “a plaintiff must prove that
(1) the product was defectively designed so as to render it unreasonably
dangerous; (2) a safer alternative design existed; and (3) the defect was a
producing cause of the injury for which the plaintiff seeks recovery.”2 Timpte
Indus., Inc. v. Gish, 286 S.W.3d 306, 311 (Tex. 2009). The first element comes
from Texas common law; the second and third elements are statutory. See TEX.
CIV. PRAC. & REM. CODE § 82.005(a) & (e); Hernandez v. Tokai Corp., 2 S.W.3d
251, 256 (Tex. 1999). “The focus of a design defect claim . . . is whether there
was a reasonable alternative design that, at a reasonable cost, would have
reduced a foreseeable risk of harm.” Timpte, 286 S.W.3d at 314.

      2
          Mercury Marine does not dispute that Brochtrup established the third element.

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      1.    Whether the Product Was Defectively Designed so as to Render it
            Unreasonably Dangerous
      Mercury Marine argues that Brochtrup did not present sufficient evidence
of the first element of a design defect claim: that the MerCruiser was defectively
designed in a way that was unreasonably dangerous. Whether a product is
“unreasonably dangerous” is generally a question of fact for a jury. Hernandez,
2 S.W.3d at 260 (holding that it “is often one that involves factual disputes that
a party is entitled to have a jury resolve.”).     However, where a proposed
alternative design “completely preclude[s] some of the uses for which the product
was designed” the question can be resolved as a matter of law. Id. at 260–61.
A court may also resolve the issue where the product’s utility is “less severely
impacted” but the evidence would not allow a jury to conclude that the product
was unreasonably dangerous. Id.
      After reviewing all of the evidence presented and drawing all reasonable
inferences in Brochtrup’s favor, the court concludes that a reasonable jury could
find the MerCruiser to be unreasonably dangerous. First, Brochtrup presented
evidence of the number and severity of propeller injuries. Second, his proposed
alternative design did not adversely impact the MerCruiser’s utility in all
situations or “completely preclude some of the uses for which [it] was designed.”
Id. Third, experts testified that the alternative design was a safer overall
design, was not excessively expensive, and was necessary to and would in fact
eliminate these types of propeller injuries. Fourth, a former MerCruiser owner
testified that he considered the exposed propeller to be dangerous and that he
would have purchased a guard had one been available.            When viewed in
Brochtrup’s favor, this evidence shows that judgment as a matter of law was not
appropriate on this factual issue.

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       Mercury Marine’s arguments to the contrary are erroneous in two
respects. First, it repeatedly asks this court to weigh the evidence presented,
even though the proper inquiry is whether sufficient evidence existed to support
Brochtrup’s claim when the evidence is viewed in the light most favorable to
Brochtrup. Reeves, 530 U.S. at 150. Second, it seeks to require Brochtrup to
have presented what Mercury Marine believes to be the best evidence of all five
risk-utility factors.3 For example, Mercury Marine complains that Brochtrup did
not present the percentage likelihood of injuries from an exposed propeller,
public awareness of the danger presented by an exposed propeller, and the
expectations of an ordinary consumer regarding an exposed propeller. The court
will evaluate only whether the non-movant presented sufficient evidence; not
whether he presented the most convincing evidence imaginable. Brochtrup’s
evidence on the first element of his design defect claim was sufficient.
       2       Whether a Safer Alternative Design Existed
       Mercury Marine also asserts that Brochtrup put forth insufficient evidence
on the second element of a design defect claim: a safer alternative design.
Specifically, Mercury Marine argues that Brochtrup failed to prove the economic
feasibility of his design because he did not submit evidence of the
costnpresumably to the manufacturernof manufacturing labor, of attaching the
alternative design to the existing product, and of making any necessary design

       3
         Texas requires courts addressing the risk-utility of a product to consider: (1) the utility
of the product to the user and the public weighed against the gravity and likelihood of injury
from use; (2) the availability of a substitute product that is not unsafe or unreasonably
expensive; (3) the manufacturer’s ability to eliminate the unsafe elements without significantly
decreasing usefulness or increasing cost; (4) the user’s awareness of the product’s danger and
its avoidability because the danger is obvious or there are suitable warnings or instructions;
and (5) consumer expectations. Timpte, 286 S.W.3d at 311.



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changes to the existing product. The Texas Supreme Court has not addressed
whether a plaintiff is required to present this evidence. In a diversity case
where there is no controlling state decision, the court “must make an ‘Erie guess’
as to how the Texas Supreme Court would apply state law.”                             Cerda v.
2004-EQR1 L.L.C., 612 F.3d 781, 794 (5th Cir. 2010) (internal quotation marks
and citations omitted). In doing so, the court “defer[s] to intermediate state
appellate court decisions, unless convinced by other persuasive data that the
higher court of the state would decide otherwise.” Id. (quotation marks and
citations omitted).
         In its most closely-related opinion, the Texas Supreme Court held that a
plaintiff was not required to build and test a prototype of the alternative design
to show technological feasibility,4 but was merely required to prove that the
alternative design was “capable of being developed.” Gen. Motors Corp. v.
Sanchez, 997 S.W.2d 584, 592 (Tex. 1999). The only Texas appellate court to
directly address the evidence required to demonstrate economic feasibility held
that a plaintiff need not “show the cost of implementing the alternative designs
into the manufacturing process.” A.O. Smith Corp. v. Settlement Inv. Mgm’t.,
No. 2-04-270-cv, 2006 WL 176815, at *3 (Tex. App.–Fort Worth Jan. 26, 2006, no
pet.).       It concluded that “[m]anufacturing costs may be one way to prove
economic feasibility, but it is not the only way.”5 Id.

         4
        Economic and technological feasibility are separate elements, each requiring separate
proof. Smith v. Aqua-Flo, Inc., 23 S.W.3d 473, 478 (Tex. App.–Houston 2000, pet. denied).
         5
          The court also determined that, even if it had accepted the manufacturer’s premise,
expert testimony that “the cost to add [the alternative design to the product] would be ‘quite
a bit less’ than $200 ‘in a manufacturing situation’” was sufficient for economic feasibility even
though the expert only evaluated proposed alternative designs and did not build a model. A.O.
Smith, 2006 WL 176815, at *3–4.

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      In two decisions that preceded A.O. Smith, a different Texas appellate
court implied that it might decide this issue differently.         Both decisions,
however, addressed a plaintiff who presented no evidence of the cost of an
alternative design. Honda of Am. Mfg., Inc. v. Norman, 104 S.W.3d 600, 606–08
(Tex. App.–Houston 2003, pet. denied); Smith, 23 S.W.3d at 477–78.
Unsurprisingly, the court found the evidence to be insufficient. Smith, 23
S.W.3d at 477–78; Norman, 104 S.W.3d at 606–08. It stated that “[t]o establish
economic feasibility, the plaintiff must introduce proof of the ‘cost of
incorporating this technology,’” but in neither case did the court have occasion
to explain what this language meant. Norman, 104 S.W.3d at 607 (quoting
Smith, 23 S.W.3d at 478).
      A.O. Smith is the only Texas appellate decision directly addressing the
issue raised by Mercury Marine. It is therefore the only decision to which this
court might “defer to” in making its “Erie guess.” Cerda, 612 F.3d at 794. As
noted above, the Texas Supreme Court’s most relevant decision held that a
plaintiff’s evidence of feasibility need not be exhaustive in order to proceed to the
jury. See Sanchez, 997 S.W.2d at 592. Third, were this court to follow Smith
and Norman, it would still need to interpret, for the first time, the phrase “the
cost of applying that technology to a particular design.” It declines to do so.
      At trial, Brochtrup relied on the testimony of Guy Taylor, the inventor and
builder of Brochtrup’s proposed alternative design. Taylor testified that the cost
to him of building the propeller guard and shield was $150 for each item, plus
an additional $100 if the owner chose to weld the guard and shield on to the
boat, for a total of $400. This was sufficient evidence of the economic feasibility
of Brochtrup’s alternative design to avoid judgment as a matter of law.


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B.    Jury Instruction on a Texas Design Defect Claim
      “There are three requirements that must be met to successfully challenge
a jury instruction.” RSR Corp., 426 F.3d at 290. “First, the challenger must
demonstrate that the charge as a whole creates substantial and ineradicable
doubt whether the jury has been properly guided in its deliberations.” Id.
(internal quotation marks omitted). Second, even where an instruction is
erroneous, the court will not reverse the verdict if it can determine, “based upon
the entire record, that the challenged instruction could not have affected the
outcome of the case.” Id. Third, the challenger must show that the instruction
that it contends should have been given was offered to the district court and was
a correct statement of the law. Id. at 290-91.
      Mercury Marine has not met any of these requirements.             First, the
instruction given was not incapable of properly guiding the jury. It clearly set
forth the first element of the design defect claim when it stated that “[a] ‘design
defect’ is a condition of the product that renders it unreasonably dangerous as
designed, taking into consideration the utility of the product and the risk
involved in its use.” See, e.g., Timpte, 286 S.W.3d at 311. Mercury Marine’s
argument faults this correct statement of relevant law simply because it was not
set off with a “(1)” and placed at the end of the instruction. In essence, Mercury
Marine seeks reversal based on the district court’s formatting decision. The jury
was clearly and correctly instructed that a design defect is one that makes a
product unreasonably dangerous based on the utility of the product and the risk
involved. “Great latitude is shown the trial court regarding jury instructions.”
FDIC v. Wheat, 970 F.2d 124, 130 (5th Cir. 1992). The court should not presume
that the jury disregarded this straightforward language simply because it was


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not set off by a “(1)”. See United States v. Reedy, 304 F.3d 358, 368 (5th Cir.
2002) (“Juries are presumed to follow instructions.”). Second, even were the
court to assume that the instruction was erroneous, it can determine “based
upon the entire record, that the challenged instruction could not have affected
the outcome of the case.” Id. “Perfection is not required as long as the
instructions were generally correct and any error was harmless.” Taita Chem.
Co. Ltd. v. Westlake Styrene, LP, 351 F.3d 663, 667 (5th Cir. 2001).
                               CONCLUSION
      For these reasons, we AFFIRM the district court in all respects.




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