                                                                           RECOMMENDED FOR FULL-TEXT PUBLICATION
24    King, et al. v. Ford Motor Co., et al.       No. 98-5960                  Pursuant to Sixth Circuit Rule 206
                                                                        ELECTRONIC CITATION: 2000 FED App. 0137P (6th Cir.)
                                                                                    File Name: 00a0137p.06
load limiters and belt loads in the 1992 Hyundai Excel. Ford
had disclosed that its experts would rebut plaintiffs’ proffered
testimony, and Ford claimed that it was unaware prior to trial
as to the nature of Syson’s testimony.                              UNITED STATES COURT OF APPEALS
   The district court squarely rejected this argument, finding                    FOR THE SIXTH CIRCUIT
that plaintiffs had disclosed the nature of Syson’s testimony                       _________________
prior to trial. In his report, Syson stated that “a force limiter

                                                                                                      ;
in the torso belt” was an option available to Ford to improve

                                                                                                       
its restraint system design. At his deposition, Syson stated        CHARLES KING, as
                                                                                                       
that he would provide exemplars of load limiters during his         Administrator of the Estate of
                                                                                                       
testimony. A year prior to trial, plaintiffs informed Ford that     Patti Ann King,
                                                                                                       
one of those exemplars would be a load limiter used in the                                                 No. 98-5960
Hyundai Excel. Despite these disclosures, the district court                   Plaintiff- Appellee,
                                                                                                       
found, Ford never divulged prior to trial that it would call any                                        >
witnesses to testify about load limiters in the Hyundai Excel.      AMANDA SUE KING, by and            
Ford does not address the above facts in its brief before this                                         
                                                                                                       
                                                                    through her next friend
court nor does it provide any explanation as to why its failure
                                                                                                       
                                                                    Charles King; ASSOCIATED
to disclose was justified. It has not demonstrated that the
                                                                                         Intervening 
district court clearly erred.                                       INSURANCE COMPANIES,
                                                                                                       
   Ford next argues that it would simply be unfair to exclude                  Plaintiffs-Appellees, 
its proffered testimony. We conclude that this is not the case.                                        
Although it was attempting to present rebuttal testimony,                                              
                                                                                                       
                                                                                v.
Ford’s unexcused failure to disclose that its experts would
testify regarding Hyundai Excel load limiters did not allow                                            
                                                                                                       
plaintiffs the opportunity to prepare properly for these            FORD MOTOR COMPANY;
                                                                                                       
witnesses. Furthermore, the district court allowed one Ford         MAZDA MOTOR
witness, Michelle Vogler, to testify about the 1992 Hyundai         CORPORATION,                       
Excel, stating in particular that the Escort and the Excel had             Defendants-Appellants. 
the same “chest loads.” The court thus did allow at least a                                           1
limited response to Syson’s “surprise” testimony. Again,
Ford has not demonstrated that the district court clearly erred.          Appeal from the United States District Court
                                                                         for the Eastern District of Kentucky at London.
                             VIII.                                     No. 95-00117—Jennifer B. Coffman, District Judge.
   For the foregoing reasons, the judgment of the district court                    Argued: August 6, 1999
is AFFIRMED.
                                                                               Decided and Filed: April 19, 2000


                                                                                                1
2       King, et al. v. Ford Motor Co., et al.          No. 98-5960       No. 98-5960           King, et al. v. Ford Motor Co., et al.           23

    Before: BATCHELDER and COLE, Circuit Judges;                                                            VII.
              MARBLEY, District Judge.*
                                                                            Ford finally claims that it is entitled to a new trial because
                      _________________                                   the district court erred by excluding portions of testimony
                                                                          from two of Ford’s experts, Roger Maugh and Geoff
                            COUNSEL                                       Germane. Maugh would have testified that the 1992 Escort
                                                                          was not defective because it did not use a load limiter in its
ARGUED: E. Duncan Getchell, Jr., MCGUIRE, WOODS,                          restraint system, and Germane would have testified that belt
BATTLE & BOOTHE, Richmond, Virginia, for Appellants.                      loads in the 1992 Hyundai Excel, which employed a load
Samuel E. Davies, Barbourville, Kentucky, for Appellees.                  limiter, were actually higher than the belt loads in the 1992
ON BRIEF: E. Duncan Getchell, Jr., Rosewell Page, III,                    Ford Escort. The testimony purportedly would have
MCGUIRE, WOODS, BATTLE & BOOTHE, Richmond,                                demonstrated that load limiters were not feasible for the 1992
Virginia, Bryan Todd Thompson, DINSMORE & SHOHL,                          Escort. The district court held that the experts’ opinions were
London, Kentucky, for Appellants. Samuel E. Davies,                       not admissible under Fed. R. Evid. 26 because Ford did not,
Barbourville, Kentucky, for Appellees.                                    within the allotted time window, disclose that the experts
                                                                          would testify about these matters. This court reviews such a
                      _________________                                   ruling for abuse of discretion. See Pedigo v. UNUM Life Ins.
                                                                          Co., 145 F.3d 804, 807 (6th Cir. 1998).
                          OPINION
                      _________________                                     Fed. R. Evid. 26(a)(2)(B) provides, in part, that a party’s
                                                                          disclosure regarding an expert witness must “contain a
  R. GUY COLE, JR., Circuit Judge. Charles King,                          complete statement of all opinions to be expressed and the
administrator of the estate of Patti Ann King; Amanda King,               basis and reasons therefor.” Fed. R. Evid. 37(c)(1), in turn,
the Kings’ daughter; and the Associated Insurance Companies               provides that “[a] party that without substantial justification
(collectively “plaintiffs”), filed this suit against the Ford             fails to disclose information required by Rule 26(a) . . . shall
Motor Company and Mazda Motor Corporation (collectively                   not, unless such failure is harmless, be permitted to use as
“Ford”). Plaintiffs alleged that the passenger restraint system           evidence at a trial, at a hearing, or on a motion any witness or
in the 1992 Ford Escort in which Patti Ann King was riding                information not so disclosed.” Ford does not contend that,
on August 21, 1994 was defective, causing her death.                      prior to trial, it disclosed that its experts would testify about
Following a jury verdict in favor of the plaintiffs, Ford raised          load limiters in the Hyundai Excel; rather, it contends that it
several grounds for appeal. For the following reasons, we                 had substantial justification for failing to disclose and that, in
AFFIRM the judgment of the district court.                                any event, it would be fundamentally unfair to disallow the
                                                                          proffered testimony. Ford claims that it was justified in
                                                                          failing to make the required disclosures under Rule 26
                                                                          because the testimony in question was merely offered to rebut
                                                                          the “surprise” testimony of plaintiffs’ expert, Syson, regarding


    *                                                                     instruction on alternative design. See Fulkerson, 812 S.W.2d at 123-24.
     The Honorable Algenon L. Marbley, United States District Judge for   In fact, Kentucky’s courts believe that this instruction may confuse juries
the Southern District of Ohio, sitting by designation.                    as to the issues at stake under this doctrine. See id.
22       King, et al. v. Ford Motor Co., et al.           No. 98-5960        No. 98-5960            King, et al. v. Ford Motor Co., et al.              3

  Since the time Kentucky adopted the doctrine of “strict                                                         I.
  liability” in products cases as stated in the Restatement,
  Second, Torts, § 402A, in the case of Dealer’s Transport                      On August 21, 1994, Patti Ann King, Ginger Brockman,
  Company v. Battery Distributing Company, Ky., 402                          and Erica Brockman were in Ginger Brockman’s 1992 Ford
  S.W.2d 441 (1966), the Kentucky practice has been to                       Escort, approaching McKee, Kentucky at about thirty to
  state the liability issue in the terms of Restatement: Did                 thirty-five miles per hour. King was in the front passenger’s
  the defendant manufacture, sell or distribute the product                  seat, Ginger Brockman was driving, and Erica Brockman was
  “in a defective condition unreasonably dangerous to the                    in the back seat. A pickup truck traveling in the opposite
  user . . . ?”                                                              direction, driven by sixteen-year-old Brian Coyle, unwisely
  ...                                                                        attempted to turn in front of Brockman’s car, into the
     In Montgomery Elevator Co. v. McCullough, Ky., 676                      driveway of a Dairy Freeze restaurant. The front of the Escort
  S.W.2d 776, 780-81 (1984), we stated:                                      clipped the truck, causing a Delta V, or change in velocity, in
     “Considerations such as feasibility of making a safer                   the car on the order of twenty-seven miles per hour.
     product, patency of the danger, warnings and
     instructions, subsequent maintenance and repair,                           The Escort employed a “passive” or “automatic belt”
     misuse, and the products’ inherently unsafe                             restraint system in its front seats. The system consisted of a
     characteristics, while they have a bearing on the                       two-point motorized shoulder belt that automatically locked
     question as to whether the product was                                  in place when the occupant closed her       door; a knee bolster
     manufactured ‘in a defective condition unreasonably                     designed to restrain the lower torso;1 and a manual lap belt.
     dangerous,’ are all factors bearing on the principal                    For a period of about six months, King had owned an Eagle
     question rather than separate legal questions.”                         Talon with a similar system, and she was described as an
     A trial court is well advised to leave consideration of                 “avid seatbelt user.” At the time of the accident, however,
  these evidentiary factors to the arguments of counsel                      King was wearing only the automatic shoulder belt and not
  rather than attempting to frame them up in the                             the manual lap belt. She apparently had the lap belt on earlier
  instructions on the ultimate questions. The language                       in the trip, but after her party stopped at the Gray Hawk store
  used may be confusing or misleading.                                       to buy a newspaper, she failed to re-engage it.

Id. The district court’s instruction in this case tracked the                   King suffered massive injuries in the accident – several
language of the Restatement (Second) of Torts § 402A and                     fractured ribs and a fractured collar bone; lacerations to both
the instruction approved by Fulkerson. It was therefore                      lungs; and a tear to the left auricle of her heart. She
sufficient under Kentucky law, and we do not find that the                   ultimately died of a lack of oxygen to her brain as a result of
district court committed reversible error in giving that                     her heart and lung injuries. King’s estate alleged that her
instruction.9                                                                injuries were the result of defects in the Escort’s restraint


     9                                                                           1
       The trial court was not required, as a matter of federal law, to            One of Ford’s experts described the knee bolster as “just a big pad
instruct on design defect. Although the appropriateness of the               right down in the lower part of the instrument panel. And it was designed
instructions is reviewed under federal procedural standards, the substance   so that if you got in a frontal accident, the torso belt would hold the upper
of the instructions to the jury should be based in state law. See Persian    torso back but the lower torso would slide forward until the knees hit the
Galleries, Inc., 38 F.3d at 257. The Kentucky courts have clearly stated     bolster and the bolster would, in effect, provide a mechanism for
that to fully expound the law on design defects, the jury need not hear an   absorbing energy in the lower torso. . . .”
4       King, et al. v. Ford Motor Co., et al.           No. 98-5960        No. 98-5960        King, et al. v. Ford Motor Co., et al.      21

system and filed suit against Ford in the United States District2           see also Schrand, 1999 WL 540877, at *2 (defining duty as
Court for the Eastern District of Kentucky on April 14, 1995.               “the exercise of ordinary care to prevent foreseeable injury
It asserted diversity jurisdiction and brought state-law claims             from occurring to another person”). We therefore find that
of negligence, strict liability, and breach of implied                      the district court did not abuse its discretion by failing to give
warranties. Associated Insurance Companies intervened to                    the requested instruction.
assert subrogation claims for medical expenses, and Amanda
Sue King, King’s daughter, intervened to assert loss of                                                    B.
consortium claims.
                                                                              Ford next contends that, with regard to plaintiffs’ design
   Before the case proceeded to trial, Ford filed a motion for              defect claim, that the district court erred by failing to give an
partial summary judgment, arguing that, to the extent                       instruction on alternate feasible designs – that is, an
plaintiffs asserted that the Escort was defective because it                instruction that the jury should determine whether there was
failed to contain an air bag, those claims were preempted by                an alternate restraint-system design available at the time the
the National Traffic and Motor     Vehicle Safety Act of 1966               Escort was manufactured and whether a reasonably prudent
(“Safety Act”), now codified3 at 49 U.S.C. § 30101 et seq.,                 manufacturer would have used this alternative. The court’s
and regulations promulgated thereunder, see 49 C.F.R.                       design-defect instruction was as follows:
§ 571.208 (1999) (“Standard 208”). The district court granted
this motion and plaintiffs’ remaining claims were tried before                  In order to recover under her [sic] design defect claim,
a jury. At the close of plaintiffs’ proofs, Ford filed a motion               the plaintiffs must establish two essential elements as
for judgment as a matter of law under Fed. R. Civ. P. 50,                     follows:
asserting that plaintiffs’ claims were preempted in their                       First, that when the 1992 Ford Escorts left the
entirety. The district court denied this motion. The case went                possession of the defendants, the design of the automatic
to the jury on two distinct theories: that the “automatic seat                seat belt restraint system was defective and unreasonably
belt restraint system was defective and unreasonably                          dangerous to the consumer.
dangerous to the consumer” and that Ford failed to warn                         And second, that the unreasonably dangerous,
consumers of the potential dangers associated with the                        defective condition of the machine was a substantial
restraint system. After first being sent back for further                     factor in causing the injury and death of Patti King.
deliberations after returning inconsistent answers to                           As the term is used in this instruction, a design is
interrogatories, the jury found Ford liable on both claims and                defective and unreasonably dangerous if it creates such
                                                                              a risk of accidental injury to a prospective user that an
                                                                              ordinarily prudent company engaged in the manufacture
                                                                              of similar products, being fully aware of the risk, would
                                                                              not have put it on the market.
    2
      Neither Ginger Brockman nor Brian Coyle were parties to this          In Ford Motor Co. v. Fulkerson, 812 S.W.2d 119, 122-24
action. Their insurance companies settled the Kings’ claims against them.   (Ky. 1991), the Kentucky Supreme Court specifically
    3                                                                       approved for use in product liability actions the very type of
     The Safety Act was originally codified at 15 U.S.C. § 1381 et seq.     bare-bones design-defect instruction used by the district court
Congress recodified the act in 1994, “‘without substantive change’ to the   in this case. The Fulkerson court wrote:
underlying provisions.” Geier v. American Honda Motor Co., 166 F.3d
1236, 1237 n.2 (D.C. Cir.), cert. granted, 120 S. Ct. 33 (1999).
.
20    King, et al. v. Ford Motor Co., et al.        No. 98-5960      No. 98-5960         King, et al. v. Ford Motor Co., et al.       5

the safety purpose for the belt.” See Miller’s Bottled Gas, Inc.     awarded damages in the amount of $1,848,109.84.4 Ford
v. Borg-Warner Corp., 56 F.3d 726, 736 (6th Cir. 1995)               renewed its motion for judgment as a matter of law and filed
(“[T]rial court may refuse to instruct the jury on an issue          a motion for a new trial, both to no avail. This timely appeal
when there has been insufficient evidence presented to               followed.
support a jury finding on that issue.”); Laugesen v. Anaconda
Co., 510 F.2d 307, 314 (6th Cir. 1975) (stating that trial court                                     II.
had no obligation to instruct on a theory not pleaded by a
party and not supported by evidence); cf. Wagner v. Case               Ford first argues that plaintiffs’ claims are preempted by
Corp., 33 F.3d 1253, 1258 (10th Cir. 1994) (approving the            federal law. This court generally reviews a district court’s
refusal to give a jury instruction, in a Colorado diversity case,    decision with regard to preemption de novo. See GTE
where party requesting instruction offered “vague” evidence          Mobilnet v. Johnson, 111 F.3d 469, 475 (6th Cir. 1997).
to support its argument).
                                                                        The Supremacy Clause of the United States Constitution
   Although Ford introduced evidence and argued as to King’s         provides that federal law “shall be the supreme Law of the
regular use of a seat belt, none of the evidence adduced by          Land . . . any Thing in the Constitution or Laws of and State
Ford indicated that King was aware of the danger of potential        to the Contrary notwithstanding.” U.S. Const. art. VI. Thus,
injuries, or worsened injuries, from the use of the shoulder         as has been clear since the Supreme Court’s decision in
belt alone. See Demaree v. Toyota Motor Corp., 37 F. Supp.           M’Culloch v. Maryland, 17 U.S. 316 (1819), any state law
2d 959, 967 (W.D. Ky. 1999) (applying Kentucky law and               that conflicts with federal law is “without effect.” Cipollone
finding no duty to warn because the plaintiff explicitly             v. Ligget Group, Inc., 505 U.S. 504, 516 (1992) (citing
testified that she knew of the danger of the car’s air bag). Nor     Maryland v. Louisiana, 451 U.S. 725, 746 (1981)).
had Ford pointed to any objective evidence that this danger
was a matter of common knowledge. See Leonard v.                       In applying the Supremacy Clause, courts “start with the
Uniroyal, 765 F.2d 560, 564 (6th Cir. 1985).                         assumption that the historic police powers of the States [are]
                                                                     not to be superseded by [a] Federal Act unless that was the
   “A judgment may be reversed only if the instructions,             clear and manifest purpose of Congress.” Medtronic v. Lohr,
viewed as a whole, were confusing, misleading, or                    518 U.S. 470, 485 (1996) (citing Rice v. Santa Fe Elevator
prejudicial.” Beard v. Norwegian Caribbean Lines, 900 F.2d           Corp., 331 U.S. 218, 230 (1947)). Therefore, “‘[t]he purpose
71, 72-73 (6th Cir. 1990). This was not the situation in the         of Congress is the ultimate touchstone’ in every pre-emption
present case. We further note that the district court gave an        case.” Id. (citing Cipollone, 505 U.S. at 516). The Supreme
instruction stating that in order for the plaintiffs to recover on   Court has stated that Congress may make its intent to preempt
a failure-to-warn theory, Ford’s failure to provide an adequate      clear either expressly or implicitly. See Freightliner Corp. v.
warning had to be a substantial factor in causing the                Myrick, 514 U.S. 280, 287 (1995). Implied preemption, in
decedent’s injuries. Although this instruction goes to               turn, takes two forms. “We have found implied conflict
causation rather than duty, it adequately conveys the intent of      pre-emption where it is impossible for a private party to
Ford’s requested instruction: if King had already been fully
apprized of the need to wear the lap belt – that is, she was
aware of the danger from not doing so – Ford’s failure to                4
                                                                          The jury apportioned fault as follows: Ford, 65%; Brian Coyle,
warn King obviously could not have played a substantial              20%; Patti King, 10%; Ginger Brockman, 5%. The estate recovered
factor in causing her death. See Leonard, 765 F.2d at 566 n.5;       $823,172.58, Amanda Sue King recovered $975,000.00, and Associated
                                                                     Insurance Cos. recovered $49,937.58.
6    King, et al. v. Ford Motor Co., et al.       No. 98-5960      No. 98-5960        King, et al. v. Ford Motor Co., et al.    19

comply with both state and federal requirements, or where          court characterized the requested instruction as a “legal
state law stands as an obstacle to the accomplishment and          standard,” and, as such, not a necessary jury instruction. This
execution of the full purposes and objectives of Congress.” Id.    characterization is consistent with the Kentucky Supreme
(internal citations and quotations omitted). In summary, then,     Court’s indication that, under Kentucky tort law, the issue of
there are three types of preemption – express preemption,          whether a defendant has a duty to a plaintiff is generally a
implied conflict preemption, and implied field preemption.         question of law to be resolved by the trial court. See Mullins
                                                                   v. Commonwealth Life Ins. Co., 839 S.W.2d 245, 248 (Ky.
   Ford’s argument revolves around the Safety Act, and             1992) (“The question of duty presents an issue of law.”);
Standard 208 promulgated thereunder. The Safety Act                Sheehan v. United Service Auto. Assoc., 913 S.W.2d 4, 6 (Ky.
authorizes the Secretary of Transportation to promulgate           Ct. App. 1996); Schrand v. Grant, No. 1997-CA-001996-MR,
Federal Motor Vehicle Safety Standards (“FMVSS”). See 49           1999 WL 540877, at *2 (Ky. Ct. App. July 2, 1999).
U.S.C. § 30101. When an FMVSS is in effect, “a State or a
political subdivision of a State may prescribe or continue in        In any event, Ford failed to present sufficient evidence
effect a standard applicable to the same aspect of performance     warranting such an instruction. Contrary to Ford’s suggestion
of a motor vehicle or motor vehicle equipment only if the          on appeal, the absence of a duty to warn was not its theory of
standard is identical to the standard prescribed under this        the case. Instead, Ford consistently argued that its warnings
chapter.” 49 U.S.C. § 30103(b). However, the act also              were adequate, a distinct issue from a lack of a duty to warn.
contains a savings clause, which provides that “[c]ompliance       For example, Ford did not plead a lack of a duty to warn in its
with a motor vehicle safety standard prescribed under this         response to King’s complaint. Likewise, in opening
chapter does not exempt a person from liability at common          arguments, Ford did not state that it would argue that it had no
law.” 49 U.S.C. § 30103(e).                                        duty to warn. Rather, Ford told the jury, after stating that its
                                                                   warnings were adequate, that it would show that King wore
   The Secretary’s Standard 208, promulgated pursuant to the       her seat belt and knew she ought to wear her seat belt,
Safety Act, requires passenger cars manufactured after             supportive evidence for its argument that it adequately warned
September 1, 1989 but before September 1, 1993, like the           King. Evidence in the case did in fact indicate that King was
Escort in this case, to comply with one of three front-seat-       an avid seat belt user, had previously worn the lap belt in
occupant crash-protection options: (1) a complete passive          Brockman’s Escort, and had briefly owned an Eagle Talon
restraint system; (2) a passive system (automatic seat belts or    with a restraint system similar to that in the 1992 Escort.
air bags) for frontal crash protection, manual belts for lateral   Ford only raised the issue of a lack of a duty to warn when it
crashes and rollovers, and a warning system; or (3) manual         moved for a directed verdict on that basis, to which the trial
front seat belts with a warning system. See 49 C.F.R.              court responded, correctly, “I don’t know of any testimony as
§ 571.208, S4.1.4-S4.1.4.2.2. Ford used option 2 -- an             to her knowledge of the danger of the product.”
automatic shoulder belt and knee bolster to protect against
frontal collisions, a manual lap belt to protect against lateral     The jury instructions initially submitted to the court by Ford
crashes and rollovers, and a warning system.                       did not include one stating that Ford did not have a duty to
                                                                   warn of a known danger. It was only after the district court
  Ford’s position is that implied conflict preemption applies      had finalized the charge when Ford requested the addition of
in this case. It argues that “[b]ecause federal policy [i.e. the   an instruction with this language. In its closing, Ford argued
Safety Act and Standard 208] affirmatively required that these     that the court would instruct the jury that “there is a duty to
three options be available to manufacturers, a state rule which    warn a person of unknown danger” and that “King knew of
18       King, et al. v. Ford Motor Co., et al.               No. 98-5960         No. 98-5960        King, et al. v. Ford Motor Co., et al.          7

prejudicial”). Therefore, the district court had the option of                    found civil liability for using one of the equipment options
seeking guidance8from Kentucky practice in formulating the                        rather than another would be preempted.” State tort law
jury instructions. In fact, a federal court’s consideration of                    removing one option would obviously be “an obstacle to the
a state’s jury instruction practice may insure that the                           accomplishment and execution of the full purposes and
instructions correctly express state substantive law. See                         objectives of Congress,” namely the objective that
Laney, 901 F.2d at 1321; cf. Rhea v. Massey-Ferguson, Inc.,                       manufacturers have flexibility in choosing a restraint system.
767 F.2d 266, 269 (6th Cir. 1985) (noting that in Michigan                        Hines v. Davidowitz, 312 U.S. 52, 67 (1941). Ford contends
the standard instructions must be given, and stating that “[t]he                  that plaintiffs’ suit would limit this flexibility, as the company
district court had no duty to give the additional requested                       characterizes plaintiffs’ suit as one claiming that two-point,
instructions if the standard instructions, viewed as a whole,                     automatic seatbelts with manual lap belts are inherently
fairly and accurately describe” state law). Finally, even if a                    defective. See Irving v. Mazda Motor Corp., 136 F.3d 764,
district court errs by failing to give a requested instruction, we                768-69 (11th Cir. 1998) (holding such a claim preempted).
will not reverse when the error is harmless. See United States
v. Toney, 161 F.3d 404, 412-13 (6th Cir. 1998), cert. denied,                      We agree with plaintiffs, however, that Ford has
526 U.S. 1045 (1999).                                                             misconstrued their case. As plaintiffs note:
                                     A.                                             In the case at bar . . . plaintiffs’ position was not that the
                                                                                    design choice made by defendants for protecting against
   Ford contends that the district court erred by failing to give                   frontal collisions – an automatic shoulder belt and knee
an instruction stating that it had no duty to warn of known                         bolster – was inherently defective but that the specific
dangers. Such an instruction would have been an accurate                            design was defective due to failure to use load limiters
general statement of Kentucky law. See Hutt, 914 F.2d at 793                        and/or change the location of the knee bolster and/or
(stating that under Kentucky law, “[t]here is no duty on the                        change the location of the belt anchor.
part of a manufacturer to warn the user of a product when the
user is aware of the product’s danger”).                                          Such a claim is not preempted by the Safety Act. The
                                                                                  FMVSS provide only the “minimum standard[s] for motor
   The trial court rejected Ford’s request to add a jury                          vehicle or motor vehicle equipment performance.” 49 U.S.C.
instruction providing that “the defendants had no duty to warn                    § 30102(a)(9). The Safety Act’s savings clause, which states
if Patti King knew of the lap belt and was aware of the                           that compliance with an FMVSS does not shield a
reasons for wearing it.” In denying the request, the district                     manufacturer from liability at common law, contemplates that
                                                                                  manufacturers may be held liable for failure to exceed these
                                                                                  minimum standards when their decisions were unreasonable.
     8
       We recognize that two of our cases – one in unelaborated dicta and
                                                                                  This is the essence of plaintiffs’ claims.
the other unpublished – suggest that the federal district court is not
required to follow the Kentucky bare bones practice. See Robinson v.                We find Perry v. Mercedes Benz of North America, Inc.,
Ralph G. Smith, Inc., 735 F.2d 186, 192 n.9 (6th Cir. 1984); Whitescarver         957 F.2d 1257 (5th Cir. 1992), to be analogous to this case.
v. Wal-Mart Stores, Inc., No. 92-5197, 1992 WL 393172, at *3 (6th Cir.            There, plaintiff alleged that the air bag in her car had “an
Dec. 29, 1992). Even if we were to consider either of these cases binding,        unreasonably dangerous ‘deceleration velocity deployment
a district court is still free to look to a state’s model jury instructions and   threshold’” despite the fact that it met the requirements of
other authority to insure it properly instructs the jury under substantive
state law.                                                                        Standard 208. Id. at 1260. In other words, plaintiff did not
                                                                                  challenge Mercedes’s decision to place an air bag in its cars,
8      King, et al. v. Ford Motor Co., et al.       No. 98-5960    No. 98-5960        King, et al. v. Ford Motor Co., et al.    17

but rather argued that the air bag should have been safer than     901 F.2d 1319, 1321 (6th Cir. 1990) (citing Williams v. Union
required by federal law. After finding that express                Carbide Corp., 790 F.2d 552 (6th Cir. 1986)).
preemption did not apply, the court held that implied conflict
preemption did not apply either. As an initial matter, the           “Kentucky follows the ‘bare-bones’ principle in providing
court found it “obvious” that there was no impossibility of        instructions.” McGuire v. Commonwealth of Kentucky, 885
complying with both federal and state law – if state law           S.W.2d 931, 936 (Ky. 1994); see also DSG Corp. v.
required a higher level of protection than federal law, a          Anderson, 754 F.2d 678, 681-82 (6th Cir. 1985). That is, the
system that complied with state requirements would satisfy         jury instructions “should not contain an abundance of detail,
federal regulations a fortiori. The court also found that the      but should provide only the bare bones of the question for
differing levels of protection did not create an obstacle to the   jury determination. This skeleton may then be fleshed out by
fulfilment of federal objectives.                                  counsel on closing argument.” Ball v. E.W. Scripps Co., 801
                                                                   S.W.2d 684, 691 (Ky. 1990) (citing Rogers v. Kasdan, 612
    Once the manufacturer chooses an option that includes an       S.W.2d 133, 136 (Ky. 1981)). The Kentucky Supreme Court
    air bag system, Standard 208 S5-S6 merely set forth            has stated that:
    minimum performance requirements for that system. To
    allow tort liability for the design of that system would not     In conclusion, it may be well to mention that whenever
    remove or require any particular choice, or otherwise            counsel feels that jurors might draw inferences that are
    frustrate “flexibility” that the federal scheme provides.        not warranted by the specific terminology of the
    We recognize that the manufacturer who chooses to meet           instructions, his opportunity to guard against it comes in
    only the bare minimum performance requirements will              the closing argument. If instructions are to be kept
    be burdened with the potential for tort liability, but this      concise and to the point, as they should be, their
    is the exact burden that Congress preserved in the               supplementation, elaboration and detailed explanation
    Savings Clause, when it stated that “[c]ompliance with           fall within the realm of advocacy. Contrary to the
    any Federal motor vehicle safety standard . . . does not         practice in some jurisdictions, where the trial judge
    exempt any person from any liability under common                comments at length to the jury on the law of the case, the
    law.” Congress sought to meet its goal of minimizing             traditional objective of our form of instructions is to
    the number of deaths and injuries caused by auto                 confine the judge’s function to the bare essentials and let
    accidents by setting forth minimum standards and                 counsel see to it that the jury clearly understands what
    leaving common law liability in place.                           the instructions mean and what they do not mean.
Id. at 1265-66. The court thus held that plaintiff’s claim was     Young v. J.B. Hunt Transp., Inc., 781 S.W.2d 503, 506-07
not preempted. See id; see also Pokorny v. Ford Motor Co.,         (Ky. 1989) (quoting Collins v. Galbraith, Ky., 494 S.W.2d
902 F.2d 1116, 1126 (3d Cir. 1990) (“Ford’s argument that          527, 531 (Ky. 1973)).
we . . . should simply hold that all safety alternatives not
included in Standard 208 are pre-empted does not persuade             In sum, the federal district court had discretion to instruct
us.”); Collazo-Santiago v. Toyota Motor Corp., 957 F. Supp.        the jury in any manner it deemed appropriate, as long as it
349, 353 (D.P.R.1997) (“[C]ompliance with performance              correctly stated Kentucky’s substantive law, instructed on the
criteria does not immunize manufacturers from common law           issues relevant to the case at hand, and did not mislead the
liability arising from any defects in the production or design     jury. See Davis v. Mutual Life Ins. Co., 6 F.3d 367, 373 (6th
of their passive restraint systems.”); cf. Sours v. General        Cir. 1993) (requiring reversal “only where the instructions,
                                                                   considered as a whole, are confusing, misleading, or
16       King, et al. v. Ford Motor Co., et al.            No. 98-5960         No. 98-5960        King, et al. v. Ford Motor Co., et al.         9

this case, the district court’s 7limited questioning of Juror 12               Motors Corp., 717 F.2d 1511, 1516-17 (6th Cir. 1983)
was proper and not coercive.                                                   (“[T]he very federal safety statute upon which GM relies
                                                                               makes it abundantly clear that compliance with the
                                   VI.                                         regulations promulgated thereunder does not immunize a
                                                                               manufacturer from common law liability.” (citing 15 U.S.C.
   Ford next contends it is entitled to a new trial because the                § 1397(c) (1976))). We hold that the plaintiffs’ claims in this
district court erred by failing to give two of its requested                   case similarly are not preempted.
instructions. This court reviews a district court’s refusal to
give requested jury instructions under an abuse of discretion                                                III.
standard. See Buziashvili v. Inman, 106 F.3d 709, 715 (6th
Cir. 1997). We review jury instructions “as a whole in order                     Ford next argues that plaintiffs’ evidence was insufficient
to determine whether [the instructions] adequately inform the                  to support a verdict on either their product defect theory or
jury of relevant considerations and provide a basis in law for                 their failure-to-warn theory. In diversity cases, this court
aiding the jury to reach its decision.” Gafford v. General                     applies a state-law standard of review to motions for
Elec. Co., 997 F.2d 150, 166 (6th Cir. 1993) (quoting Beard                    judgment as a matter of law which challenge the sufficiency
v. Norwegian Caribbean Lines, 900 F.2d 71, 72 (6th Cir.                        of the evidence necessary to support the jury's verdict. See
1990)).                                                                        Morales v. American Honda Motor Co., 151 F.3d 500, 506
                                                                               (6th Cir. 1998). Under Kentucky law, the applicable standard
   In a diversity action, state law determines the substance of                of review is as follows:
the jury instructions; however, questions regarding the
propriety of the instructions are governed by federal                            Under Kentucky law, a motion for a directed verdict –
procedural law.           See Persian Galleries, Inc. v.                         the same thing as a motion for judgment as a matter of
Transcontinental Ins. Co., 38 F.3d 253, 257 (6th Cir. 1994).                     law under Rule 50, Fed. R. Civ. P. – should be granted
In addition, trial courts have broad discretion in framing jury                  only if “there is a complete absence of proof on a
instructions. See United States v. Moore, 129 F.3d 873, 876-                     material issue in the action, or if no disputed issue of fact
77 (6th Cir. 1977); see also Scamardo v. Scott County, 189                       exists upon which reasonable minds could differ.”
F.3d 707, 711 (8th Cir. 1999); Jennings v. BIC Corp., 181                        Washington v. Goodman, 830 S.W.2d 398, 400 (Ky.
F.3d 1250, 1254 (11th Cir. 1999). “It is the better practice for                 App. 1992). In deciding such a question, “every
a federal court sitting in diversity to use state approved jury                  favorable inference which may reasonably be drawn from
instructions” in order to accurately instruct the jury on the                    the evidence should be accorded the party against whom
appropriate state substantive law. Laney v. Celotex Corp.,                       the motion is made.” Baylis v. Lourdes Hosp., Inc., 805
                                                                                 S.W.2d 122, 125 (Ky. 1991).
     7
      Ford also argues that the form of the question used by the district      Id. (quoting Adam v. J.B. Hunt Transp., Inc., 130 F.3d 219,
court – asking whether Juror 12 agreed with the verdict – was improper         231 (6th Cir. 1997)).
and that the question was “legally meaningless.” This argument is
without merit. If a trial court decides to poll the jury, it has substantial                                  A.
discretion in determining the manner of polling. See Audette, 789 F.2d at
959-60. “Unless the trial judge’s interrogation serves to coerce a reluctant     We turn first to the sufficiency of the evidence in plaintiffs’
juror into changing his vote, any formulation that [serves to ascertain that   product defect claim. Following the Restatement (Second) of
the verdict was unanimous] is permissible.” Green v. Zant, 738 F.2d
1529, 1537-38 (11th Cir. 1984).                                                Torts § 402A, Kentucky imposes strict liability when the
10    King, et al. v. Ford Motor Co., et al.       No. 98-5960      No. 98-5960        King, et al. v. Ford Motor Co., et al.     15

“‘design itself selected by the manufacturer amounted to a          31(d); Grossheim v. Freightliner Corp., 974 F.2d 745, 752-53
defective condition which was unreasonably dangerous.’”             (6th Cir. 1992) (affirming grant of new trial when polling
Morales v. American Honda Motor Co., 71 F.3d 531, 536               revealed that juror only assented to verdict so that she “could
(6th Cir. 1995) (citing Nichols v. Union Underwear Co., 602         go home”). There is a line of cases from other circuits that
S.W.2d 429, 433 (Ky. 1980)). The plaintiff has the burden,          holds that it is error for a district court to force a juror who
however, to establish causation under the substantial factor        has expressed reluctance with a verdict during a jury poll to
test – that is, plaintiff must prove that the defendant’s conduct   cast his or her vote in open court without further deliberation
was a substantial factor in bringing about plaintiff’s harm. Id.    in the jury room. See, e.g., United States v. Edwards, 469
at 537 (citing Deutsch v. Shein, 597 S.W.2d 141, 144 (Ky.           F.2d 1362, 1366 (5th Cir. 1972) (finding reversible error
1980); Huffman v. SS. Mary & Elizabeth Hosp., 475 S.W.2d            when judge demanded that juror state whether or not the
631, 633 (Ky. 1972)). Plaintiff may use circumstantial              verdict was hers when she initially indicated that the verdict
evidence, and “in that situation, ‘the evidence must be             was hers, but that she was “still in doubt”). However, a
sufficient to tilt the balance from possibility to probability.’”   judge’s limited questioning of a juror regarding a poll answer
Id. (citing cases).                                                 is not coercive or otherwise erroneous if used simply to clear
                                                                    up ambiguity in the juror’s answer. See id. at 1367 n.5
  Ford contends that “the plaintiffs here presented no              (finding a “limited exception to the bar of questioning from
testimony upon which a jury could find that King’s injuries         the bench” when it is apparent that the juror was confused
were caused by belt loading that exceeded her tolerances.           about a poll question or when the “juror’s dissent has resulted
That was left to sheer speculation and surmise.” Ford focuses       from an inadvertent slip of the tongue”); Williams v. United
on the testimony of two of plaintiffs’ experts, Syson and           States, 419 F.2d 740, 746 (D.C. Cir. 1969) (“There is a
Lafferty. Syson testified that King would have had a belt load      distinction in law and in fact between actions of the trial judge
of 1,100 to 1,300 pounds during the accident and that this was      to obtain clarity in place of confusion, and actions that
“right at her tolerance level,” as a 138 lb. woman. Ford also       produce a likelihood that a juror has been coerced.”). Here,
claims that Lafferty testified that a woman’s tolerance level is    the situation that precipitated the district court’s questions
higher than 1,100 to 1,300 lbs. Thus, the company contends          was confusing. The jury was leaving the courtroom, the
that neither testified that the belt load in this case exceeded     judge’s microphone was not on at first, and there is some
the decedent’s tolerance level. Ford therefore contends that        indication that Juror 12 was having trouble hearing the judge.
plaintiffs failed to prove causation in this accident.              Furthermore, the district court stated, in denying Ford’s
                                                                    motion for a new trial based on this issue, that Juror 12
  We reject this argument. As an initial matter, Ford distorts      appeared “perplexed.” See United States v. Brooks, 420 F.2d
Lafferty’s testimony. Ford claims that “Dr. Lafferty testified      1350, 1353 (D.C. Cir. 1969) (noting that “the trial judge is in
that the human tolerance belt loads for a female would range        a much better position than an appellate tribunal to determine
between 1,400-1,600 pounds.” In reality, Lafferty testified,        whether a recalcitrant juror’s eventual acquiescence in a
consistent with Syson, that this 1,400-1,600 lb. figure             verdict was in fact freely given”). Under the circumstances of
represented the average tolerance level for “a 50 percentile
male.” Lafferty did not give a figure for the average woman’s
tolerance level – or for the decedent’s tolerance level, for that
matter – but did testify that the thresholds are lower for
women than for men. Second, as plaintiffs note, the evidence
indicated that “there is great variation from one person to the
14       King, et al. v. Ford Motor Co., et al.            No. 98-5960         No. 98-5960        King, et al. v. Ford Motor Co., et al.    11

whether the verdict represented his or her answer.6 Rather                     next” with regard to the amount of force that they can tolerate.
than answering yes or no, Juror 12 answered “Here.” The                        Therefore, one should not interpret Syson’s statement that the
court apparently thought that all of the jurors had said yes,                  belt loads were “right at her tolerance level” as an indication
and dismissed the jury. As the members were leaving,                           that the belt loads did not exceed the decedent’s tolerance
however, the court reporter alerted the court to Juror 12's                    level. Finally, circumstantial evidence strongly supports the
anomalous answer. The court stopped the jury, and the                          plaintiffs’ case. After the accident, the decedent was found
following exchange occurred:                                                   turning blue with the seat belt cutting into her neck and chest.
                                                                               The belt had to be cut to relieve the pressure. There is
  THE COURT: All right. I need to know from you                                testimony that her injuries were typical of those caused by
  whether the verdict that was rendered represents your                        restraint systems. Additionally, plaintiffs’ experts eliminated
  own verdict. Yes or no?                                                      other possible sources -- there was no evidence that the
  A JUROR: No.                                                                 decedent impacted the windshield or the dashboard, with the
  THE COURT: I’m sorry?                                                        exception of her hand and possibly her knee. There was
  A [DIFFERENT] JUROR: He can’t hear you.                                      certainly sufficient evidence in this case whereby a jury could
  THE COURT: I’m sorry I don’t have the microphone                             have concluded that decedent’s injuries were caused by
  on. I need to know whether the verdict that was returned                     excessive belt loads.
  represents your verdict?
  A JUROR: No.                                                                                               B.
  THE COURT: Do you by saying no, are you saying that
  you do not agree with the verdict?                                             Ford also contends that there was insufficient evidence for
  A JUROR: I agree with it, yeah, all of it.                                   the jury to find that the warnings in the 1992 Escort were
  THE COURT: All right. What do you mean when you                              defective and a substantial factor in causing the decedent’s
  say that you say it’s not your verdict? I just want to                       injuries. Specifically, Ford claims that the evidence in the
  know if you agree with it or not agree with it.                              case demonstrates that the danger of not wearing the lap belt
  A JUROR: I agree with it, what we put down.                                  was known to the decedent and that the warnings located in
                                                                               the Escort as to that danger were adequate.
  Ford’s position is that the court coerced Juror 12 into giving
his consent to the verdict. Generally, the proper procedure                       Ford is correct that in Kentucky there is no duty to warn of
when a poll indicates that unanimity with a verdict is                         a known danger. See Hutt v. Gibson Fiber Glass Prods., Inc.,
uncertain is to return the jury to the jury room for further                   914 F.2d 790, 793 (6th Cir. 1990); Demaree v. Toyota Motor
deliberations or to declare a mistrial. Cf. Fed. R. Crim. P.                   Corp., 37 F. Supp. 2d 959, 967 (W.D. Ky. 1999). The
                                                                               evidence here demonstrated that the decedent was an avid seat
                                                                               belt user and that she had in fact been wearing the lap belt in
     6                                                                         the Escort earlier in the day.
       Under Fed. R. Crim. P. 31(d) a party in a criminal case has the right
to have the jury polled. Although jury polling clearly does take place in
civil trials, see, e.g., Grossheim, 974 F.2d at 748, there is no express         The jury, however, may have permissibly concluded from
provision for polling in the Federal Rules of Civil Procedure. See Audette     the evidence in this case that the decedent was aware that not
v. Isaksen Fishing Corp., 789 F.2d 956, 959 (1st Cir. 1986). It is             wearing the lap belt would reduce the effectiveness of the
apparently an unsettled question as to whether a party has a right to          restraint system in preventing injuries caused by hitting the
demand a jury poll in a civil case. See id. In any event, in civil cases
when there are questions as to polling procedure, courts apparently look       dashboard or the like, but that she was not aware that the
to criminal cases for guidance. See, e.g., id. at 958-60.                      failure to wear the belt could lead to deadly injuries caused by
12   King, et al. v. Ford Motor Co., et al.      No. 98-5960      No. 98-5960          King, et al. v. Ford Motor Co., et al.          13

the shoulder harness, even in a relatively minor accident.        Id. at 520. We affirm the district court on this issue.
Therefore, we cannot conclude, as a matter of law, that the
decedent was aware of the danger involved in this case.                                             IV.
  Nor can we conclude that the Escort’s warnings were               Ford next argues that the district court erred by failing to
adequate as a matter of law. The warning located on the           order a new trial when the jury returned with inconsistent
Escort’s visor stated:                                            interrogatory answers. Fed. R. Civ. P. 49(b) provides that
                                                                  when the jury so returns, the court should send the jury back
  IMPORTANT FOR YOUR SAFETY                                       for further deliberations or order a new trial. Ford moved for
  Following these instructions will greatly improve your          the latter, but the district court did the former.
  chances of avoiding severe injury in case of an accident.
  Be sure the shoulder belt buckle is engaged.                      This issue requires little discussion. “In deciding at what
  Always wear your lap belt when the car is moving. If a          point further deliberations by a particular jury would be
  lap belt cannot be worn, you should move the seat               fruitless or unduly coercive, the trial judge has wide
  forward so your knees are as close to the instrument            discretion.” United States v. Stevens, 177 F.3d 579, 583 (6th
  panel as possible.                                              Cir. 1999). Ford provides absolutely no case law or reasoning
                                                                  to support its claim that resolving the inconsistency in the
Under Kentucky law, a warning “must be fair and adequate,         jury’s initial answers to the interrogatories required not
to the end that the user, by the exercise of reasonable care on   merely a correction, but a change in the jury’s conclusions.
his own part, shall have a fair and adequate notice of the        Cf. United States v. Vazquez-Rivera, 135 F.3d 172, 177 (1st
possible consequences of use or even misuse.” Post v.             Cir.1998) (“Painting black lines on the sides of a horse and
American Cleaning Equip. Corp., 437 S.W.2d 516, 520 (Ky.          calling it a zebra does not make it one.”).
App. 1968) (citing 76 A.L.R.2d 9, 37 (1961)). While the
warning in this case does indicate that following its advice                                         V.
will “improve your chances of avoiding severe injury in case
of an accident” it does not indicate that misuse could lead to      Ford next argues that it was entitled to a new trial because
severe injury caused by the shoulder belt itself. It was          of defects in the jury verdict. This court reviews for abuse of
certainly within the jury’s prerogative to conclude that the      discretion a district court’s denial of a motion for a new trial.
warning in this case did not adequately convey the dangers        See United States v. Rapanos, 115 F.3d 367, 372 (6th Cir.
involved. Post provides:                                          1997).

  As an example, it may be doubted that a sign warning,             Ford claims that the verdict in this case was not
  “Keep off the Grass,” could be deemed sufficient to             unanimous.5 After the jury returned following further
  apprise a reasonable person that the grass was infested         deliberations, each member of the jury was polled as to
  with deadly snakes. In some circumstances a reasonable
  man might well risk the penalty of not keeping off the
  grass although he would hardly be so daring if he knew
  the real consequences of his failing to observe the
  warning sign. Or, a warning to “Keep in a Cool Place”               5
                                                                       The verdict had to be unanimous in this diversity civil case because
  might not be sufficient if the result of nonobservance was      the court gave a unanimity instruction. See Grossheim v. Freightliner
  a lethal explosion of the container.                            Corp., 974 F.2d 745, 753 (6th Cir. 1992).
