     Case: 11-60293     Document: 00511636180         Page: 1     Date Filed: 10/18/2011




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

                                                                            FILED
                                                                         October 18, 2011

                                     No. 11-60293                          Lyle W. Cayce
                                   Summary Calendar                             Clerk



A.K.W., a minor, by and through his mother, Sheri Stewart,

                                                  Plaintiff–Appellant
v.

EASTON-BELL SPORTS, INCORPORATED; EASTON SPORTS,
INCORPORATED; BELL SPORTS CORPORATION; RIDDELL SPORTS
GROUP, INCORPORATED; EASTON-BELL SPORTS, L.L.C.; RIDDELL,
INCORPORATED; BELL SPORTS, INCORPORATED; EB SPORTS
CORPORATION; ALL AMERICAN SPORTS CORPORATION; RBG
HOLDING CORPORATION; UNKNOWN DEFENDANTS X,Y, AND Z,

                                                  Defendants–Appellees



                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                             USDC No. 1:09-CV-703


Before REAVLEY, SMITH, and PRADO, Circuit Judges.
PER CURIAM:*
        This case arises out of an injury that the Appellant A.K.W. sustained
during a high school football scrimmage. Because we determine that there is
sufficient evidence from which a reasonable trier of fact could find for Appellant,

        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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we REVERSE the district court’s grant of summary judgment to Appellees
Riddell, Inc. and All American Sports Corporation (collectively, the “Appellees”).
           I. FACTUAL AND PROCEDURAL BACKGROUND
      A.K.W. was injured during his ninth grade football team’s practice on
September 13, 2006. A.K.W.’s coaches were trying A.K.W. out as a middle
linebacker during a scrimmage near the end of that day’s practice. On the final
play of that scrimmage, A.K.W. stepped up to tackle the opposing side’s
quarterback and was aided in that tackle by two of his teammates. All of the
players in on the tackle landed on top of A.K.W.; his head was the first thing to
hit the ground. At the conclusion of practice, A.K.W.’s right eye blurred, he
stumbled into a friend, and then collapsed on the football field. A.K.W.’s coaches
removed his helmet, which is now lost. A.K.W. was taken to the University of
South Alabama Medical Center, where he was diagnosed with a carotid artery
tear that has since rendered him partially paralyzed.
      A.K.W.’s mother filed this suit in Mississippi state court on his behalf
against the Appellees and other parent and subsidiary companies of the
Appellees (the “Defendants”). The complaint alleged defective design of A.K.W.’s
helmet. Defendants removed the case to federal court. The district court
dismissed A.K.W.’s claims against all of the Defendants except the Appellees and
those entities are not party to this appeal. Appellees moved for summary
judgment, which the district court granted. A.K.W. filed this appeal.
         II. STANDARD OF REVIEW AND APPLICABLE LAW
      We review a district court’s grant of summary judgment de novo, applying
the same standards as the district court. Hernandez v. Yellow Transp., Inc., 641
F.3d 118, 124 (5th Cir. 2011). Summary judgment is appropriate where the
movant shows that there is no genuine issue of material fact and that the
movant is entitled to judgment as a matter of law. Id. (citing Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 247 (1986); Fed. R. Civ. P. 56(a)). In reviewing the

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record, all facts and inferences are construed in the light most favorable to the
non-movant. Id. However, “[i]f the record, taken as a whole, could not lead a
rational trier of fact to find for the non-moving party, then there is no genuine
issue for trial.” Id. (internal quotation marks omitted).
      Where, as here, federal jurisdiction is based on diversity, we apply the
substantive law of the forum state. First Colony Life Ins. Co. v. Sanford, 555
F.3d 177, 181 (5th Cir. 2009) (citing Erie R.R. Co. v. Tompkins, 304 U.S. 64,
78–79 (1938)). In resolving issues of Mississippi law, “we look to the final
decisions of that state’s highest court” and if there is no decision directly on
point, then we must determine how that court, if presented with the issue, would
resolve it. Chaney v. Dreyfus Serv. Corp., 595 F.3d 219, 229 (5th Cir. 2010). In
making this determination, decisions from the intermediate state appellate court
are useful. Id. Beyond Mississippi sources, “‘[w]e may consult a variety of
sources, including the general rule on the issue, decisions from other
jurisdictions, and general policy concerns.’” Id. (quoting Travelers Cas. & Sur.
Co. of Am. v. Ernst & Young LLP, 542 F.3d 475, 483 (5th Cir.2008)).
                               III. DISCUSSION
      A.K.W.’s claims arise under the Mississippi Products Liability Act
(“MPLA”). Miss. Code Ann. § 11-1-63. The MPLA sets out three elements for a
defective design claim: (1) the product was defectively designed, id. § 11-1-
63(a)(i)(3); (2) the design defect made the product “unreasonably dangerous,” id.
§ 11-1-63(a)(ii); (3) the design defect caused the injury, id. § 11-1-63(a)(iii). See
also 3M Co. v. Johnson, 895 So. 2d 151, 161 (Miss. 2005). The Mississippi
Supreme Court has said, however, that the fact that a product is unreasonably
dangerous is what “[i]n most cases . . . makes the design defective.” Williams v.
Bennett, 921 So. 2d 1269, 1274 (Miss. 2006). Moreover, we have previously
stated that the MPLA imposes three conditions to satisfy the “unreasonably
dangerous” element: (a) the manufacturer/seller knew, or should have known,

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about the dangerous condition, id. § 11-1-63(f)(i); (b) the product “failed to
function as expected,” id. § 11-163(f)(ii); and (c) there was a “feasible design
alternative,” id. Guy v. Crown Equip. Corp., 394 F.3d 320, 324 (5th Cir. 2004);
see also Williams, 921 So. 2d at 1274. A.K.W. must present evidence of each of
these elements to survive summary judgment.
A.      Design Defect
        Appellant claims that the defect in Riddell’s helmet design is that Riddell
used a discrete liner padding system and traditional foam (“traditional discrete
padding”). Appellees contend that Appellant cannot prove defective design
because the helmet that A.K.W. wore when he was injured is lost and because
there were at least four different types of Riddell helmets in use on the date of
A.K.W.’s injury, in addition to helmets by other manufacturers. Appellees point
to cases where Mississippi courts have required plaintiffs to show that, at the
time of the injury, the product was in substantially the same condition as when
it left the defendant’s control. See, e.g., Harris v. Int’l Truck & Engine Corp., 912
So. 2d 1101, 1105 (Miss. Ct. App. 2005) (citing Wolf v. Stanley Works, 757 So. 2d
316, 319 (Miss. Ct. App. 2000)). Appellant counters by claiming that his expert
Dr. Ari Engin, when rendering his opinion, assumed that A.K.W.’s helmet was
in perfect condition and that regardless of which model A.K.W. wore, all the
Riddell helmets were defective per se upon leaving the manufacturer because of
the traditional discrete padding. Therefore, Appellant reasons that since the
comparison product for the feasible design alternative is not the exact, individual
product involved in the injury, proof as to substantial similarity is unnecessary.
        Appellant’s argument about the necessity of producing the actual helmet
is persuasive. A.K.W. has testified that the helmet he wore had a Riddell sticker
on it. Appellees admit that all four models of Riddell helmets used by A.K.W.’s
high school had traditional, discrete padding. Appellant’s expert Engin opined
that a continuous padding system using theromoplastic urethane (“TPU

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continuous padding”) is “better” at dealing with impacts, like the one sustained
by A.K.W.’s helmet and has said that this conclusion applies to all four Riddell
models that A.K.W. could have been wearing. Because the opinion is not based
on the actual helmet there is no need for Appellant to have produced the actual
helmet. To be sure, the Appellees can argue to the jury that the differences
between the four models are so significant to undercut Engin’s opinion about the
per se nature of traditional discrete padding. But where an opinion about defect
is based on a perfect condition product that is straight-from-the-manufacturer
and that opinion applies to all potential products that could have caused the
injury, there seems no basis to erect a bar at the summary judgment phase. See
Bradley v. Cooper Tire & Rubber Co., 2005 WL 5989799, at *4–5 (S.D. Miss. Oct.
25, 2005) (“The court is not persuaded that the fact that the accident tire is
unavailable for physical examination and inspection (i.e., for visual and tactile
examination) will always present an insurmountable impediment to the
formation of a reliable expert opinion as to the existence of a defect-particularly
a design defect [under the MPLA] . . .”) (citing Henry v. Bridgestone/Firestone,
63 F. App’x 953, 957 (7th Cir. 2003).
B.      Unreasonably Dangerous
        Though there are three components of the “unreasonably dangerous”
element under the MPLA, Guy, 394 F.3d at 324, where the product, like the
helmet at issue in this case, is designed primarily to prevent injuries, proof as
to each of the three components overlaps. Proving the existence of a “feasible
design alternative” is proof of failing to perform as expected. Id. (“[T]he claimant
must provide evidence that the product failed to function as expected by way of
producing evidence of a feasible design alternative that could have reasonably
prevented the claimant's injury.”). The MPLA defines a “feasible design
alternative” as “a design that would have to a reasonable probability prevented
the harm without impairing the utility, usefulness, practicality or desirability

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of the product to users or consumers.” Miss. Code Ann. § 11-1-63(f)(ii). Engin
identified TPU continuous padding as a design alternative to the traditional
discrete padding used by Riddell. Engin noted that such a design is used in
motorcycle helmets as well as in other manufacturers’ football helmets. The fact
that the alternative design offered by Appellant’s expert was in use by Riddell’s
competitors is proof of its feasibility and that Riddell should have known about
the dangerous condition. See Restatement (Third) Torts: Products Liability § 2
cmt. d (“Industry practice may also be relevant to whether the omission of an
alternative design rendered the product not reasonably safe.”); Phillip L.
McIntosh, Tort Reform in Mississippi: An Appraisal of the New Law of Products
Liability, Part II, 17 Miss. C. L. Rev. 277, 282 (1997) (“For example, a new
design may create a danger that is not discovered by the manufacturer because
. . . the manufacturer failed to keep up with reasonably available technological
advances.”). That is to say that TPU continuous padding could have been
implemented by Riddell “without impairing the utility, usefulness, practicality
or desirability of the product to users or consumers.” Miss. Code Ann. § 11-1-
63(f)(ii).    Since the harm-prevention component of the feasible design
alternative definition involves some of the same analysis as causation, we turn
to that element now.1
C.      Causation
        In Mississippi products liability cases, “[t]he plaintiff must introduce
evidence . . . that it is more likely than not that the conduct of the defendant was
a cause in fact of the result[—a] mere possibility of such causation is not

        1
         Appellees urge that Appellant cannot prove that Engin’s design alternative could have
to a “reasonable probability prevented the harm” because Engin failed to test his alternative
design. Engin relied on his expertise in the field and force models of how different padding
systems would have distributed the force. Failure to conduct testing of the alternative design
goes to the weight that should be afforded to Engin’s opinions but is not fatal to Appellant’s
prima facie case. Watkins v. Telsmith, Inc., 121 F.3d 984, 992 (5th Cir. 1997) (“This is not to
say that alternative product designs must always be tested by a plaintiff’s expert.”).

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enough.” Herrington v. Leaf River Forest Prods., Inc., 733 So. 2d 774, 777 (Miss.
1999). “[T]he cause in fact of an injury is that cause which, in natural and
continuous sequence unbroken by any efficient intervening cause, produces the
injury and without which the injury would not have occurred.” Glover ex. rel.
Glover v. Jackson State Univ., 968 So. 2d 1267, 1277 (Miss. 2007) (internal
quotation marks omitted). Engin opines in his report “within a reasonable
degree of engineering and bioengineering certainty” that the discrete padding
“localized the impact force on the scalp and skull and contributed to the basilar
skull fracture,” which combined with other forces on A.K.W.’s head “caused
dissection injury of the right internal carotid artery at the base of the skull.”
Appellees point to a part of Engin’s deposition where he was pressed about his
conclusion that, Appellees argue, undercuts Engin’s report.

      Q:    “ . . . you’re not saying that [A.K.W.] would not have been
            inured if [A.K.W.’s helmet] had [TPU continous padding] put
            in place.”
      A:    “ . . . “it’s very difficult to make that judgment because I’m a
            scientist. You know, I don’t want to guess here.”

We are not persuaded that this brief exchange is enough to undercut Engin’s
consistent opinion that A.K.W.’s injury would have been prevented or lessened
by TPU continuous padding.
                             IV. CONCLUSION
      For the foregoing reasons, we REVERSE the district court’s grant of
summary judgment to Appellees.
      REVERSED.




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