                                                                           FILED
                           NOT FOR PUBLICATION
                                                                           SEP 10 2019
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


DAVID MICHERY,                                   No.   17-56844

              Plaintiff-Appellant,               D.C. No.
                                                 2:12-cv-04957-RSWL-FFM
 v.

FORD MOTOR COMPANY, a Delaware                   MEMORANDUM*
corporation,

              Defendant-Appellee.


                    Appeal from the United States District Court
                       for the Central District of California
                    Ronald S.W. Lew, District Judge, Presiding

                        Argued and Submitted April 8, 2019
                               Pasadena, California

Before: RAWLINSON and MURGUIA, Circuit Judges, and RAKOFF,** District
Judge.

      Appellant David Michery (Michery), who was severely injured during an

accident while driving a 1999 Ford Expedition manufactured by Appellee Ford


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
            The Honorable Jed S. Rakoff, United States District Judge for the
Southern District of New York, sitting by designation.
Motor Company (Ford), appeals the district court’s judgment entered in favor of

Ford after a jury trial. Michery alleged that his injuries resulted from a design

defect in the Ford Expedition’s front bumper.

      1.     A new trial is not warranted based on the district court’s decision not

to instruct the jury on comparative fault after Ford withdrew its affirmative

defense. Under California law, Ford properly asserted that Michery was unable to

demonstrate that his injuries were caused by a design defect. See Demara v. The

Raymond Corp., 13 Cal. App. 5th 545, 553 (2017) (explaining that “the plaintiff

must prove that the design was a substantial factor in causing an injury”) (citations

omitted). Michery is also unable to demonstrate the requisite prejudice. See

Dunlap v. Liberty Nat. Prods., Inc., 878 F.3d 794, 798 (9th Cir. 2017) (articulating

that instructional error is harmless “[w]here it is more probable than not that the

jury would have reached the same verdict had it been properly instructed”)

(citation and internal quotation marks omitted). The jury never reached the issue

of causation, instead rendering its verdict in favor of Ford based exclusively on the

risk-benefit design test—an entirely independent basis for determining that Ford

was not liable. See Demara, 13 Cal. App. 5th at 562 (applying risk-benefit test

under California law).




                                           2
      2.     The district court properly excluded under Rule 407 of the Federal

Rules of Evidence (Rule 407)1 design improvements to other vehicles several years

after the manufacture of the 1999 Ford Expedition. Ford’s expert acknowledged

that reinforcement of the Expedition’s front bumper was feasible, but challenged

the utility of Michery’s proposed design, thus precluding evidence of subsequent

remedial measures. See Gauthier v. AMF, Inc., 788 F.2d 634, 637-38 (9th Cir.

1986) (explaining that, under Rule 407, “where a defendant argues about the trade-

offs involved in taking precautionary measures, it is not placing feasibility in

issue”) (citation omitted) (emphasis in the original).

      Alternatively, the district court properly excluded subsequent remedial

measures implemented on vehicles manufactured several years after the 1999 Ford

Expedition as unduly prejudicial under Rule 403 of the Federal Rules of Evidence.

See McCollough v. Johnson, Rodenburg & Lauinger, LLC, 637 F.3d 939, 953 (9th

Cir. 2011) (stating that “relevant evidence must be excluded if its probative value



      1
         Michery failed to raise in district court his assertion that the district court
erred under Erie R. R. Co. v. Tompkins, 304 U.S. 64 (1938) in applying Rule 407 in
lieu of California’s more lenient evidentiary rules. Therefore, we decline to
address this issue on appeal. See Yamada v. Nobel Biocare Holding AG, 825 F.3d
536, 543 (9th Cir. 2016), as amended (“Generally, an appellate court will not hear
an issue raised for the first time on appeal. . . .”) (citation omitted). In any event,
we have recognized that Rule 407 is the governing procedural rule under Erie. See
Rosa v. Taser Int’l, Inc., 684 F.3d 941, 948-49 (9th Cir. 2012).
                                           3
is substantially outweighed by the danger of unfair prejudice, confusion of the

issues, or misleading the jury”) (citation omitted).

      3.     The district court did not abuse its discretion in its formulation of the

verdict form. Although listing causation as the first issue to be decided by the jury

would have been more consistent with California’s civil jury instructions, see Cal.

Civ. Jury Inst. 1204, Michery fails to demonstrate that the verdict form improperly

shifted the burden of proof under the risk-benefit test. The jury was properly

instructed that Ford had the burden of proof under the risk-benefit test, and we

presume that the jury followed this instruction. See Weeks v. Angelone, 528 U.S.

225, 234 (2000).

      AFFIRMED.




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