        RECOMMENDED FOR FULL-TEXT PUBLICATION
             Pursuant to Sixth Circuit Rule 206                 2       Grimes, et al. v. Mazda North                     No. 01-6305
     ELECTRONIC CITATION: 2004 FED App. 0013P (6th Cir.)                Am. Operations, et al.
                 File Name: 04a0013p.06
                                                                Kentucky, for Appellees. ON BRIEF: Lance W. Turner,
                                                                Thomas E. Carroll, CARROLL LAW OFFICES, Monticello,
UNITED STATES COURT OF APPEALS                                  Kentucky, for Appellant. Charles E. English, Jr., David W.
               FOR THE SIXTH CIRCUIT                            Anderson, ENGLISH, LUCAS, PRIEST & OWSLEY,
                 _________________                              Bowling Green, Kentucky, for Appellees.
                                                                                       _________________
 SHARON RANELL GRIMES,            X
         Plaintiff-Appellant,      -                                                       OPINION
                                   -                                                   _________________
                                   -   No. 01-6305
            v.                     -                              MERRITT, Circuit Judge. This products liability action
                                    >                           presents an appeal from a jury verdict in favor of defendants
                                   ,
 MAZDA NORTH AMERICAN                                           Mazda and Ford and against plaintiff Sharon Grimes after a
                                   -
 OPERATIONS; FORD MOTOR                                         rollover truck accident in Kentucky left Grimes a
                                   -
                                                                quadriplegic.1 She alleges that two defects in the truck
 COMPANY ,                         -
                                                                caused her injuries: (1) the truck’s design gave it a high
          Defendants-Appellees. -                               propensity to rollover under reasonably foreseeable
                                   -
                                                                circumstances, and (2) the seat belt unlatched during the
                                  N
                                                                accident. On appeal, Grimes contends that the district court
        Appeal from the United States District Court            did not have proper jurisdiction over the claims, made
  for the Western District of Kentucky at Bowling Green.        erroneous evidentiary rulings and gave erroneous jury
    No. 97-00095—Thomas B. Russell, District Judge.             instructions on apportionment of damages. Specifically, she
                                                                raises the following issues: (1) the district court should have
               Argued: September 11, 2003                       remanded the case to the state court because it no longer had
                                                                subject-matter jurisdiction over the case when the
          Decided and Filed: January 13, 2004                   Commonwealth of Kentucky was added as a party because
                                                                (a) the court’s diversity jurisdiction was destroyed and (b) the
  Before: MERRITT, GILMAN, and SUTTON, Circuit                  Commonwealth is immune from suit under the Eleventh
                     Judges.                                    Amendment; (2) the trial court erred in instructing the jury on
                                                                apportionment of fault (a) against the Commonwealth of
                   _________________                            Kentucky because the Commonwealth is immune from
                        COUNSEL
                                                                    1
                                                                      Although Grimes’ lawyer, Tho mas E. C arroll, also filed a Notice of
ARGUED: Lance W. Turner, CARROLL LAW OFFICES,                   Appeal on behalf of Grimes’ daughter and listed her in the style of the
Monticello, Kentucky, for Appellant. Charles E. English, Jr.,   case, the daughter was dismissed as a plaintiff below and she is not
ENGLISH, LUCAS, PRIEST & OWSLEY, Bowling Green,                 mentioned in the appellate brief. Thus, we have no basis to adjudicate a
                                                                claim by the daughter.

                             1
No. 01-6305                  Grimes, et al. v. Mazda North            3    4     Grimes, et al. v. Mazda North                 No. 01-6305
                                    Am. Operations, et al.                       Am. Operations, et al.

liability and (b) against the driver of the truck because                  Gutierrez was driving about 50-55 mph, within the speed
plaintiff’s claim was an “enhanced injury” claim; and (3) the              limit, when she came upon a curve in the road. The truck
trial court erred in admitting evidence concerning (a) drug and            spun; and, as she tried to correct for the spin, she lost control
alcohol use on the night of the accident by both plaintiff and             of the truck. Gutierrez testified that her wheels may have
the truck’s driver and (b) other accidents involving similar               gone off the pavement. The truck tipped over and slid on the
vehicles for the purpose of establishing notice to defendants              passenger side, landing upside down. Gutierrez was
of a potential defect in the seat belt, but not for the purpose of         suspended upside down in the truck by her seat belt, but she
establishing a design defect in the seat belt.                             was unhurt. Grimes was upside down on the passenger side
                                                                           of the truck, her head against the roof and her legs against the
  For the following reasons, we affirm the judgment of the                 windshield. As a result of the accident, she is a ventilator-
district court.                                                            dependent quadriplegic.
                                  I.                                          A team of two emergency medical technicians responded
                                                                           to the accident. Both testified that plaintiff was conscious and
                              FACTS                                        able to talk to them. The two responding technicians gave
                                                                           conflicting testimony at trial as to whether plaintiff was
   Defendant Ford Motor Company is the parent corporation                  wearing her seat belt when they arrived. One of the
of defendant Mazda North American Operations. On July 21,                  responding emergency medical technicians testified that when
1995, plaintiff Sharon Grimes, 24 years old, was a passenger               he arrived at the accident scene, plaintiff, on the passenger
in a 1994 Mazda B2300 pickup truck. The truck was                          side of the now-upside down truck, had her right arm
manufactured by Ford and distributed by Mazda.2 It was                     entangled in the shoulder strap of a seat belt. The other
owned by Norma Bergeron but was being driven that night by                 responding technician testified that plaintiff was not
her daughter, Lisa Gutierrez. Grimes, Gutierrez, and another               entangled in her seatbelt, and he further testified that plaintiff
friend, April Shae Dyer, had been riding around in the truck               told him that she had not been wearing her seatbelt. She also
before the accident. Grimes was drinking beer, and there is                told him that she had consumed alcohol, cocaine and
also evidence that she and Gutierrez may have used cocaine                 marijuana before the accident. Plaintiff also told the
and smoked marijuana before the accident as well. Plaintiff                emergency room nurse that first treated her that she had not
and Gutierrez dropped off Dyer around midnight, and plaintiff              been wearing her seat belt and that she had consumed drugs
then purchased more beer.                                                  and alcohol before the accident. Another nurse present in the
                                                                           emergency room when plaintiff arrived confirmed that
   The accident occurred as Gutierrez and plaintiff were                   plaintiff said she had not been wearing her seatbelt. In
traveling on Highway 704 in Adair County, Kentucky, a rural                contrast to her statements the night of the accident, plaintiff
area. Gutierrez had not driven on the road before that night.              testified at trial that she always wore her seat belt and was
                                                                           wearing it the night of the accident.

    2                                                                        Also giving differing accounts of the situation at different
      The Mazda B230 0 pickup is essentially the same as the Ford Ranger
Series pickups and much of the discussion at trial related to the Ford
                                                                           times was the driver, Lisa Gutierrez. At the time of the
Ranger Series.                                                             accident, Gutierrez told the responding state trooper that both
No. 01-6305               Grimes, et al. v. Mazda North        5    6     Grimes, et al. v. Mazda North                 No. 01-6305
                                 Am. Operations, et al.                   Am. Operations, et al.

she and plaintiff had been wearing their seat belts at the time     position at the time of the accident. The seat belt worn by the
of the accident. However, Gutierrez testified at trial that         driver, Gutierrez, showed the expected signs of having been
plaintiff was not entangled in her seat belt after the accident.    in use during the accident. Based on their findings,
In addition, the responding officer testified that he tested        Ford/Mazda’s experts concluded that plaintiff was not
Gutierrez and she was not intoxicated at the time of the            wearing her seat belt at the time of the accident.
accident. Her blood alcohol level was consistent with her
testimony that she had consumed one or two beers.                      Conversely, plaintiff presented expert testimony on
                                                                    “inertial unlatching,” where the button that releases the belt
   At trial, both sides presented expert testimony about the        is subjected to forces during the accident that cause the button
rollover propensities of the Ford Ranger/Mazda pickup truck.        to move to the position it would be in if pressed to unlatch by
Defendants’ expert testified that the likely cause of the           the user. One of plaintiff’s experts, an engineer, testified that
rollover was that the left wheels of the truck left the roadway.    the bracket that anchored the seat belt to the frame of the
The expert concluded that under the same conditions (curve          truck was bent as if the seat belt had been in use during the
in the road and driving at about 55 mph), many cars and light       accident. His opinion was that plaintiff had been wearing her
trucks would experience a rollover if the driver-side wheels        seat belt at the time of the accident. Plaintiff’s other seat belt
left the road. Another expert for Ford/Mazda testified that         expert testified that the wear on the seat belt in question was
this particular truck does not experience rollovers anymore         consistent with the belt having been in use for at least part of
frequently than other similar vehicles.                             the rollover accident and his opinion was that the belt came
                                                                    unlatched during the rollover. Finally, a forensic pathologist
  Plaintiff’s expert testified that there was no evidence that      testified that had plaintiff’s seat belt been on and stayed on
the truck’s tires had left the road, and it was his opinion that    during the accident and if the truck had not rolled over, she
the truck was on the road when it flipped over. Another             would not have suffered such a serious injury.
expert for the plaintiff testified that the type of suspension in
this model of truck enhances the propensity to rollover                The action was originally filed on May 28, 1996, in Adair
because it raises the center of gravity. He testified that design   (KY) Circuit Court against Lisa Gutierrez, the driver,
changes to the wheel rims, use of smaller tires and switching       Gutierrez’s mother, Norma Bergeron, who owned the truck at
to different shock absorbers would make the vehicle much            the time of the accident, Larry Bergeron, who is Gutierrez’s
less likely to rollover under dry, flat pavement conditions.        father, and Meridian Mutual Insurance Company. Larry
                                                                    Bergeron was dismissed shortly thereafter. An amended
  Both sides also presented expert testimony about whether          complaint was filed adding Mazda and Ford as defendants six
the seat belt was defective, thereby causing it to unlatch          weeks later. Plaintiff alleged theories of negligence, breach
during the rollover. Defendants presented two experts, both         of warranty and strict liability. Defendants removed the case
of whom testified that they did not find any marks on the           to the Western District of Kentucky based on diversity of
passenger-side seat belt (plaintiff was in the front passenger      citizenship, 28 U.S.C. § 1332. After learning that plaintiff
seat) that would likely have been present if plaintiff had been     had filed an action against the Commonwealth in the
wearing her seat belt at the time of the accident. One of           Kentucky Board of Claims alleging that her injuries were
defendant’s experts testified that the condition of the             caused by the Commonwealth’s negligence in maintaining,
passenger side seat belt indicates that it was in the “stowed”      designing and constructing its roads and for failing to warn of
No. 01-6305               Grimes, et al. v. Mazda North       7    8        Grimes, et al. v. Mazda North                      No. 01-6305
                                 Am. Operations, et al.                     Am. Operations, et al.

a known dangerous curve, defendants filed a third-party            contributing to the accident. Under Kentucky law, only by
complaint pursuant to Federal Rule of Civil Procedure 14(a)        bringing a third-party claim against the Department could
against the Kentucky Transportation Cabinet, Department of         defendants seek contribution from it for any damages
Highways, seeking apportionment of fault and contribution          awarded to plaintiff. Based on the joinder, plaintiff moved to
under Kentucky law. Plaintiff moved to remand the case,            remand the case to state court, arguing that joining the
arguing that joining the Commonwealth as a third-party             Department destroyed complete diversity and robbed the
defendant destroyed the federal court’s diversity jurisdiction     federal court of subject matter jurisdiction. The district court
and violated the Eleventh Amendment to the United States           denied the motion, citing Kentucky law that requires that, in
Constitution. The district court denied the motion to remand       order to receive an apportionment instruction, a claim must be
and trial ensued.                                                  made against the alleged wrongdoer, even if there is no legal
                                                                   right to recover from that wrongdoer. As the district court
   After a 19-day trial, the jury returned a verdict in favor of   noted, “the practice is to bring the alleged wrongdoer into the
defendants, finding that plaintiff was not wearing her seat belt   case by a third party complaint only to then have it dismissed.
at the time of the accident and that the truck was not             This sets up a possible apportionment instruction.” D. Ct.
defective. Plaintiff timely appealed that verdict. Because the     Order, dated Mar. 8, 2000.
jury found that plaintiff was not wearing her seat belt at the
time of the accident, it did not make a finding concerning           Plaintiff’s argument that the complete diversity necessary
whether there was a defect in the seat belt. The jury also         for subject-matter jurisdiction under 28 U.S.C. § 1332 was
found that the truck was not defective and, following the          destroyed when defendants brought a claim against the
instructions by the court and the verdict form, it answered no     Commonwealth is without merit. Third-party claims by
further questions as to that issue. Finally, because it found no   defendants for contribution against a third-party under Federal
liability on the part of defendants, no damages were awarded       Rule of Civil Procedure 14(a)3 generally do not require an
and the jury did not answer the questions on the verdict form      independent jurisdictional basis. Instead, such claims fall
regarding apportionment of damages.                                within the court’s supplemental jurisdiction if the impleaded
                                                                   defendant’s actions share a “common nucleus of operative
                              II.                                  fact” with the case already before the court.
                       DISCUSSION                                    It is well settled that supplemental jurisdiction exists over
                                                                   a properly brought third-party complaint. King Fisher
A. Joining the Kentucky Department of Transportation               Marine Serv., Inc. v. 21st Phoenix Corp., 893 F.2d 1155,
as a Third-Party Defendant Did Not Destroy the Federal
          Court’s Subject-Matter Jurisdiction
                                                                       3
                                                                           Fed eral Rule of C ivil Pro cedure 14(a) states:
  Defendants impleaded the Kentucky Department of
Transportation as third-party defendants after they discovered         At any time after the commencem ent of the action a defending
that plaintiff had brought a separate action against the               party, as a third-party plaintiff, may cause a summons and
Department in the Kentucky Court of Claims for failure to              complaint to be served upon a person not a party to the action
warn about an existing road hazard and thereby causing or              who is or may be liable to the third-party plaintiff for all or part
                                                                       of the plaintiff's claim against the third-party plaintiff.
No. 01-6305               Grimes, et al. v. Mazda North        9    10   Grimes, et al. v. Mazda North                No. 01-6305
                                 Am. Operations, et al.                  Am. Operations, et al.

1161 (10th Cir. 1990) (“A court has ancillary jurisdiction of       Kentucky’s failure to adequately warn drivers about a known
a defendant’s proper Rule 14(a) claim against a third-party         dangerous road. Accordingly, diversity was not destroyed
defendant without regard to whether there is an independent         when the Department was added as a third-party defendant
basis of jurisdiction, so long as the court has jurisdiction of     and the district court properly retained subject-matter
the main claim between the original parties.”); 6 Charles Alan      jurisdiction. True, as plaintiff notes, intervention or joinder
Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice          of a non-diverse and indispensable party at some point after
and Procedure, § 1444, at 321 (2d ed. 1990) (“The cases on          removal may defeat the court’s diversity jurisdiction. But in
point almost all hold that defendant’s claim against a              this instance plaintiff argues exactly the opposite — that the
third-party defendant is within the ancillary jurisdiction of the   Kentucky DOT was an improper party subject to Eleventh
federal courts.”).                                                  Amendment immunity and against whom fault could not be
                                                                    apportioned.
   The supplemental jurisdiction provision, 28 U.S.C.
§ 1367(b), states congressional intent to prevent original            Plaintiff also contends that the fact that the Department was
plaintiffs– but not defendants or third parties--from               immune from suit under the Eleventh Amendment destroyed
circumventing the requirements of diversity. See H.R. Rep.          diversity jurisdiction when it became a party. The defendants
No. 101-734, at 29 (1990), reprinted in 1990 U.S.C.C.A.N.           raised the Eleventh Amendment as an affirmative defense,
6860, 6875 (explaining that the purpose of § 1367(b) is to          and this defense does not raise a jurisdictional question here
prevent “plaintiffs [from being able] to evade the                  for purposes of diversity. The district court properly
jurisdictional requirement of 28 U.S.C. § 1332 by the simple        dismissed the Department from the suit on Eleventh
expedient of naming initially only those defendants whose           Amendment grounds, and, as stated in its order, recognized
joinder satisfies section 1332' s requirements and later adding     that defendants joined the Department solely to allow them to
claims not within original federal jurisdiction against other       seek an instruction apportioning fault to the state if the
defendants who have intervened or been joined on a                  evidence warranted.
supplemental basis.”). By contrast, “[b]ecause defendants are
involuntarily brought into court, their [claims a]re not deemed                        B. Evidentiary Rulings
as suspect as those of the plaintiff, who is master of his
complaint.” United Capitol Ins. Co. v. Kapiloff, 155 F.3d           1. Evidence Relating to Drug and Alcohol Use
488, 493 (4th Cir. 1998); see also North American Stainless
v. PNC Bank, Kentucky, Inc., No. 99-5730 at **2 n.4, 2000             Plaintiff claims that the district court erred in allowing the
WL 1256898 (6th Cir. July 13, 2000) (affirming case where           introduction of evidence of drug and alcohol use by Gutierrez,
district court exercised supplemental jurisdiction over third-      the driver, and plaintiff herself, on the night of the accident
party defendant that was not diverse from original plaintiff).      because such evidence was irrelevant. Evidence that plaintiff
                                                                    used drugs and alcohol on the night of the accident was
   Here, the parties to the original action and the amended         relevant because testimony was given at trial that she told one
complaint were all diverse.           The addition of the           of the responding emergency medical technicians and the
Commonwealth as a third-party defendant clearly arises from         emergency room nurse that she was not wearing her seatbelt
the “same nucleus of operative fact” because plaintiff had          that evening. Plaintiff testified at trial that she always wore
alleged that the accident was caused, at least in part, by          her seatbelt and was wearing it at the time of the accident.
No. 01-6305               Grimes, et al. v. Mazda North       11
                                 Am. Operations, et al.

Alcohol or drug use before the accident could have impaired
plaintiff’s memory of the evening or caused her to not use a
seatbelt even if she normally would use it. The district court
therefore properly ruled that the evidence went to the weight
of plaintiff’s testimony about her seat belt use the night of the
accident.
   As to Gutierrez, the driver, the court ruled that the evidence
of her drug and alcohol use on the night of the accident went
to the credibility of her testimony describing the accident. As
the driver of the truck and a defendant in the case, evidence
that she was under the influence of drugs or alcohol was
clearly relevant. It may have caused or contributed to the
accident.
2. Limiting the Purpose for Which Evidence of Similar
Accidents Could Be Used
  Plaintiff introduced evidence from persons involved in
other accidents where the seat belt latch in the vehicle was
defective. The district court ruled that such evidence could be
used only for the purpose of providing notice to the
manufacturer of a possible defect, not as evidence that the
product was defective. We believe that the court ruled
correctly on this point. But, even if there were error, the error
had no effect. The jury returned a special verdict that plaintiff
was not wearing her seatbelt and that this, not design defect,
may have been a cause of her injury.
   C. Instructing the Jury on Apportionment of Fault
  Plaintiff’s appeal of the apportionment instructions is moot
because the jury found no liability against defendants. See
Adam v. J.B. Hunt Transport, Inc., 130 F.3d 219, 227 (6th
Cir. 1997).
   For the foregoing reasons, the judgment of the district court
is affirmed.
