     Case: 10-20675     Document: 00511807295         Page: 1     Date Filed: 03/30/2012




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

                                                                            FILED
                                                                          March 30, 2012

                                       No. 10-20675                        Lyle W. Cayce
                                                                                Clerk

MARIA RODRIGUEZ TRENADO, Individually and as representative of the
estates of her spouse, Martin Ramon Trenado, deceased, and of her son Jose
Trenado, deceased; EMANUEL TRENADO, Individually; JESSICA
TRENADO, Individually,

                                                  Plaintiffs – Appellants
v.

COOPER TIRE & RUBBER COMPANY, a Delaware Corporation,

                                                  Defendant – Appellee



                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:08-cv-00249


Before KING, WIENER, and HAYNES, Circuit Judges.
PER CURIAM:*
        Plaintiffs–Appellants, the Trenados, brought a products liability suit
against Defendant–Appellee, Cooper Tire & Rubber Company, after a tire on the
Trenados’ van failed catastrophically. The jury returned a verdict in favor of
Cooper on all claims, and the district court entered a take-nothing judgment.
We AFFIRM.

        *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
   Case: 10-20675   Document: 00511807295      Page: 2   Date Filed: 03/30/2012



                                  No. 10-20675

             I. FACTUAL AND PROCEDURAL BACKGROUND
      On July 21, 2007, Martin, Maria, Jessica, Jose, and Emanuel Trenado
were involved in a tragic rollover accident that resulted in the deaths of Martin
and Jose and injuries to Maria and Jessica. The family was returning to
Houston after vacationing in Mexico, and Emanuel was driving the Trenados’
1991 Chevrolet van on a divided highway. Emanuel testified that he heard a
noise and then lost control of the van. Expert testimony indicates that the van
was traveling between 74 and 85 miles per hour when a tire on the Trenados’
van failed and the accident sequence began. The tire at issue was a Sears
Guardsman Trailhandler AP size P235/75R15 XL tire that the Trenados had
purchased in 2003. Cooper Tire & Rubber Company had both designed and
manufactured the tire.
      Emanuel, Jessica, and Maria Trenado, individually and on behalf of the
estates of Martin and Jose Trenado, filed this diversity products liability suit,
bringing claims under Texas law. The Trenados asserted that Cooper was
strictly liable for design and manufacturing defects in the tire that caused it to
fail, which, in turn, caused the fatal crash and related damages. The Trenados
also contended that Cooper was negligent in connection with the design and
manufacture of the subject tire. An eight-person jury found that there was no
causal design defect, no causal manufacturing defect, and no negligence that
caused the deaths and injuries at issue.       Consequently, the district court
rendered a take-nothing judgment and dismissed the Trenados’ claims with
prejudice.
      The Trenados timely appealed. Question 1 of the verdict form asked
whether there was a design defect that caused the deaths and injuries alleged.
The question included an instruction regarding a rebuttable presumption of no
liability under Texas Civil Practice and Remedies Code § 82.008 that applies if
a defendant establishes that (1) the product at issue complied with a mandatory

                                        2
   Case: 10-20675    Document: 00511807295      Page: 3   Date Filed: 03/30/2012



                                 No. 10-20675

federal safety standard that governed the risk of harm alleged and (2) the
standard was applicable to the product at the time it was manufactured. The
safety standard at issue in this case is Federal Motor Vehicle Safety Standard
(“FMVSS”) 109, 49 C.F.R. § 571.109. The Trenados contend that inclusion of this
instruction in Question 1 of the verdict form constitutes reversible error. In
addition, prior to trial, the Trenados had sought to prevent the admission of
evidence related to compliance with FMVSS 109 through a motion in limine.
They contend that the denial of their motion also constitutes a ground for
reversing the judgment of the district court.
                              II. DISCUSSION
A. The Jury Instruction on the Presumption under § 82.008
      1. Standard of Review
      “We review properly preserved claims of jury instruction error for abuse
of discretion.” Wright v. Ford Motor Co., 508 F.3d 263, 268 (5th Cir. 2007).
Reversal     is     proper    when     “[t]he     party     challenging        the
instructions . . . demonstrate[s] that the charge as a whole creates substantial
and ineradicable doubt whether the jury has been properly guided in its
deliberations.” Navigant Consulting, Inc. v. Wilkinson, 508 F.3d 277, 293 (5th
Cir. 2007) (citation and internal quotation marks omitted). However, “even
where a jury instruction was erroneous, we will not reverse if we determine,
based upon the entire record, that the challenged instruction could not have
affected the outcome of the case.” Id. (citation and internal quotation marks
omitted).
      “Where a claimed ground of instructional error raised on appeal was not
properly preserved below we may reverse only for plain error, which requires not
only error, but also that the error was clear or obvious [and] that substantial
rights were affected . . . .” Wright, 508 F.3d at 272 (citations and internal
quotation marks omitted). We may, at our discretion, correct an error when

                                       3
   Case: 10-20675    Document: 00511807295      Page: 4   Date Filed: 03/30/2012



                                  No. 10-20675

failure to do so “would seriously affect the fairness, integrity, or public
reputation of judicial proceedings.” Id. (citation and internal quotation marks
omitted).
      2. The Jury Instruction
      The Trenados contend that the district court erred by instructing the jury
about a rebuttable presumption of no liability under Texas Civil Practice and
Remedies Code § 82.008. Section 82.008 provides:
      (a) In a products liability action brought against a product
      manufacturer or seller, there is a rebuttable presumption that the
      product manufacturer or seller is not liable for any injury to a
      claimant caused by some aspect of the formulation, labeling, or
      design of a product if the product manufacturer or seller establishes
      that the product’s formula, labeling, or design complied with
      mandatory safety standards or regulations adopted and
      promulgated by the federal government, or an agency of the federal
      government, that were applicable to the product at the time of
      manufacture and that governed the product risk that allegedly
      caused harm.

      (b) The claimant may rebut the presumption in Subsection (a) by
      establishing that:

            (1) the mandatory federal safety standards or regulations
            applicable to the product were inadequate to protect the public
            from unreasonable risks of injury or damage; or

            (2) the manufacturer, before or after marketing the product,
            withheld or misrepresented information or material relevant
            to the federal government’s or agency’s determination of
            adequacy of the safety standards or regulations at issue in the
            action.
The jury instruction at issue appeared as part of Question 1, which asked
whether “there was a design defect . . . that was a producing cause of the injuries
in question.” The language regarding the presumption tracked § 82.008 almost
verbatim and relayed to the jury that “[t]here is a rebuttable presumption that


                                        4
   Case: 10-20675            Document: 00511807295         Page: 5     Date Filed: 03/30/2012



                                            No. 10-20675

a product manufacturer . . . is not liable for any injury . . . if the product
manufacturer . . . establishes that the product’s . . . design complied with
mandatory safety standards . . . .”1 Thus, the jury was allowed to determine both
whether the presumption applied and whether it had been rebutted.
          3. FMVSS 109 and the Relevant Product Risk
          The Trenados contend that Cooper was not entitled to the instruction on
the presumption under § 82.008 because Cooper failed to establish that the
subject tire complied with a safety standard governing the relevant product
risk.2 As set out above, to be entitled to the presumption under § 82.008, a
defendant must show compliance “with mandatory [federal] safety standards . . .
that governed the product risk that allegedly caused the harm.” TEX. CIV. PRAC.
& REM. CODE ANN. § 82.008(a). Cooper’s entitlement to the instruction on
§ 82.008 was predicated solely on its compliance with FMVSS 109, which
“specifies tire dimensions and laboratory test requirements for bead unseating
resistance, strength, endurance, and high speed performance; defines tire load
ratings; and specifies labeling requirements for passenger car tires.” 49 C.F.R.
§ 571.109 at S1. FMVSS 109 requires, inter alia, that a tire “exhibit no visual
evidence of tread, sidewall, ply, cord, innerliner, or bead separation, chunking,
broken cords, cracking, or open splices” after being subjected to a variety of
stressful conditions. Id. at S4.2.1(e). Other required testing assesses a tire’s
ability to withstand impact forces applied by a cylindrical steel plunger and its
ability to run at high speeds without failing. Id. at S4.2.2.4, S4.2.2.6, S5.3, S5.5.


          1
              The parties do not dispute that the jury instruction at issue was a correct statement
of law.
          2
         The Trenados also suggest that the legislative history underlying FMVSS 109
suggests that Congress did not intend compliance with Federal Motor Vehicle Safety
Standards to function as a defense or otherwise affect the rights of the parties. However, as
set out above, § 82.008 of the Texas Civil Practice and Remedies Code expressly creates a
presumption of no liability based on compliance with mandatory federal safety standards.

                                                   5
   Case: 10-20675     Document: 00511807295       Page: 6    Date Filed: 03/30/2012



                                    No. 10-20675

      The Trenados assert that FMVSS 109 “has literally nothing to do with
detecting or preventing the type of defect or risk of defect at issue in this case,”
which they define as the subject tire’s “undue propensity for late-life catastrophic
tread separation failure.”3 They argue that relevant testing would assess long-
term durability, including “the ability of the tire’s internal components to
maintain their integrity over long-term exposure to heat and oxygen and other
environmental factors.” FMVSS 109, by contrast, requires laboratory testing
that takes only a few hours to conduct.
      Cooper defines the relevant risk more broadly than the Trenados do,
contending that tire failure due to a lack of durability is the relevant product
risk. According to Cooper, FMVSS 109 directly governs this risk. As Cooper
notes, the magistrate judge in this case conducted an extensive analysis of the
applicability of FMVSS 109 and took similar view of the relevant risk. In her
January 26, 2010 Memorandum and Recommendations, the magistrate judge
discussed the product risk as the “risk of [tire] failure” and stated that “FMVSS
109 clearly presents minimum standards which Defendant’s tires must meet
before those tires may be permitted to fail without legal repercussion.” Cooper
further highlights that the tests required by FMVSS 109 pertain to tires’
strength and durability—characteristics the Trenados contended were lacking
in the tire that failed. See 49 C.F.R. § 571.109 at S4.2.2.4 (setting requirements
for “[t]ire strength”), S4.2.2.5 (setting requirements for “[t]ire endurance”),
S4.2.2.6 (setting requirements for “[h]igh speed performance”).
      This court addressed a similar dispute in Wright v. Ford Motor Co., 508
F.3d 263 (5th Cir. 2007). The Wrights’ son had been backed over and killed by
a Ford Expedition, and the Wrights sought to recover damages from Ford,
alleging that the Expedition at issue “had a large and unreasonably dangerous

      3
        This ground was not raised in an objection before the district court and is thus
reviewed only for plain error.

                                           6
   Case: 10-20675   Document: 00511807295     Page: 7   Date Filed: 03/30/2012



                                 No. 10-20675

blind spot . . . [and] that Ford should have included [a] reverse sensing system
as mandatory standard equipment on all Expedition models.” Id. at 267–68.
The district court had instructed the jury that the presumption created by
§ 82.008(a) applied but could be rebutted in accordance with § 82.008(b). Id. at
269. The Wrights contended this constituted reversible error because the
standard at issue, FMVSS 111, “d[id] not govern the rear sensing system with
which they argue[d] the Expedition should have been equipped.” Id.
      In addressing the Wrights’ challenge, this court stressed that the
applicability of the presumption in § 82.008(a) turns on the alleged risk, not on
the alleged defect. See id. at 270. FMVSS 111 was entitled “Rearview mirrors”
and set out “requirements for the performance and location of rearview mirrors.”
49 C.F.R. § 571.111 at S1. Nowhere did it address the alleged defect (i.e., the
absence of rear sensors). See id. However, the standard expressly stated that
its purpose was “to reduce the number of deaths and injuries that occur when
the driver of a motor vehicle does not have a clear and reasonably unobstructed
view to the rear.” Id. at S2. Because the harm in Wright was a death attributed
to the Expedition’s obstructed rear visibility, this court held that FMVSS 111
addressed the product risk of harm asserted and that the district court properly
rejected the Wrights’ objection to the jury charge. See Wright, 508 F.3d at 272.
      In the instant case, we conclude that tire failure was the relevant product
risk and that FMVSS 109 governed this risk. Unlike the safety standard in
Wright, FMVSS 109 does not expressly state its purpose or the risk it seeks to
address. Compare 49 C.F.R. § 571.109 with § 571.111. However, FMVSS 109
does require a number of tests aimed at assuring that a tire is sufficiently
durable to avoid failure under numerous stressful conditions. See 49 C.F.R.
§ 571.109. At trial, the Trenados’ witnesses and attorneys often framed the
alleged defects of the subject tire in terms of what they alleged was inadequate
durability. These descriptions of the relevant risk in terms of characteristics

                                       7
   Case: 10-20675       Document: 00511807295         Page: 8     Date Filed: 03/30/2012



                                       No. 10-20675

FMVSS 109 directly addresses suggest that FMVSS 109 governs the risk of
harm in this case. See Wright, 508 F.3d at 270 (considering statements at trial
made by the plaintiffs’ experts and attorneys when determining whether the
standard at issue governed the risk of harm alleged). Moreover, the broad range
of tests required by FMVSS 109 and the variety of stressful conditions imposed
on tires suggest that the regulation governs tire failure in general, as opposed
to a particular mode of failure or type of defect. Consequently, the Trenados’
challenge regarding the applicability of FMVSS 109 to the risk at issue does not
demonstrate that it was plain error to instruct the jury on the presumption
under § 82.008.
       4. Compliance with FMVSS 109
       The Trenados argue that Cooper failed to offer any evidence of compliance
with FMVSS 109 and thus was not entitled to a jury instruction regarding the
presumption in § 82.008.4 A jury instruction regarding the presumption in
§ 82.008 is proper if there is some evidence that would permit a rational jury to
find that the presumption applies. See FDIC v. Blanton, 918 F.2d 524, 529 (5th
Cir. 1990) (“A party is entitled to an instruction only on claims supported by
some evidence.” (citation omitted)); Hansard v. Pepsi-Cola Metro. Bottling Co.,
865 F.2d 1461, 1468 (5th Cir. 1989). The Trenados stress that Cooper did not
introduce FMVSS 109 into evidence and contend that the requirements to
comply with FMVSS 109 were never fully explained. The Trenados concede that
Cooper’s expert witness Lyle Campbell described tests that resembled those
FMVSS 109 requires, but they assert that there was no evidence that the subject
tire or its design prototype met mandatory federal safety requirements.
Furthermore, although Campbell did testify at some length about Cooper’s high-



       4
        Counsel for the Trenados properly preserved this claim of error by objecting at trial.
Thus, an abuse of discretion standard applies.

                                              8
   Case: 10-20675   Document: 00511807295     Page: 9   Date Filed: 03/30/2012



                                 No. 10-20675

speed testing, the Trenados contend that he provided little, if any, information
about the other tests FMVSS 109 requires.
      Cooper, on the other hand, asserts that Campbell’s testimony did provide
a basis for the jury to conclude that the subject tire complied with FMVSS 109.
Campbell testified that the subject tire was marked with a Department of
Transportation (“DOT”) number that reflected Cooper’s certification that the tire
met all applicable DOT requirements. Campbell further testified that “DOT –
Department of Transportation – No. 109 was the government regulation test”
related to high-speed performance and indicated that a tire must meet the
regulation’s requirements for the tire to be sold in the United States. Campbell
also stated that Cooper conducts high-speed, endurance, strength, and bead-
unseating tests on its tires during the design process, on tires sampled from
production batches before its tires can be shipped, and again as part of its
quality assurance program (through a process called “surveillance testing”) on
tires sampled from its warehouse. Campbell then testified in detail about the
high-speed surveillance testing of tires made from the same specification as the
subject tire in the 38th week of 2003 (two weeks before the subject tire was
made) and the 43rd week of 2003 (three weeks after the subject tire was made).
With regard to the tire made in the 38th week of 2003, Campbell testified that
it was subject to high-speed, strength, and bead-unseating testing, and he agreed
that the “tire met and exceeded all of the requirements, including Cooper Tire’s
surveillance requirement.” The results of the surveillance testing were admitted
into evidence as Defendant’s Exhibit 51, which included the results of
endurance testing as well.
      Although Cooper certainly could have gone to greater lengths to set out the
requirements of FMVSS 109 and to demonstrate compliance with the regulation,
we conclude that Campbell’s testimony was sufficient to allow a reasonable jury
to find that a mandatory federal standard governed tire durability and that the

                                       9
  Case: 10-20675     Document: 00511807295        Page: 10    Date Filed: 03/30/2012



                                    No. 10-20675

subject tire complied with that standard. Consequently, the district court did
not err on this ground in instructing the jury on the rebuttable presumption
under § 82.008.
      5. Testimony Regarding the Risk FMVSS 109 Addresses5
      The Trenados also contend that there was no testimony at trial
establishing that FMVSS 109 governed the risk of harm alleged in this case.
However, Campbell’s testimony again provided a reasonable basis for the jury
to conclude that mandatory federal safety standards governed the risk of harm
alleged (i.e., tire failure). As we discussed above, the subject tire’s alleged defect
was often framed as a lack of durability. Campbell testified about strength,
endurance, bead-unseating, and high-speed testing, which are related directly
to tires’ durability. Moreover, in his detailed explanation of Cooper’s high-speed
testing, Campbell testified that the testing is conducted until the tire fails. This
testimony shows a direct link between tire failure and the tests the DOT
requires. Thus, there was a sufficient basis for a reasonable jury to conclude
that the product risk in this case was tire failure and that Cooper’s testing was
geared toward meeting federal safety standards governing that risk.
Consequently, the trial court did not commit plain error by instructing the jury
regarding § 82.008 on this ground.
      6. Applicability of Safety Standards When the Subject Tire was Made6
      The Trenados contend that the jury instruction on the presumption at
issue was improper because there was no evidence presented to the jury that
FMVSS 109 applied to the subject tire at the time it was made. However, as
discussed above, Campbell examined testing done on tires made from the same


      5
        This ground was not raised in an objection before the district court and is thus
reviewed only for plain error.
      6
        This ground was not raised in an objection before the district court and is thus
reviewed only for plain error.

                                          10
  Case: 10-20675        Document: 00511807295          Page: 11     Date Filed: 03/30/2012



                                        No. 10-20675

specification as the subject tire both two weeks before and three weeks after the
subject tire was made. Further, he expressly stated that, at the time the tire
made in the 38th week of 2003 was tested, “Department of Transportation – No.
109 was the government regulation test.” Thus, we conclude that it was not
plain error for the district court to instruct the jury on the presumption under
§ 82.008 based on a lack of evidence that FMVSS 109 applied to the subject tire.
B. The Denial of the Trenados’ Motion in Limine
       “The grant or denial of a motion in limine is considered discretionary, and
thus will be reversed only for an abuse of discretion and a showing of prejudice.”
Hesling v. CSX Transp., Inc., 396 F.3d 632, 643 (5th Cir. 2005) (citing Buford v.
Howe, 10 F.3d 1184, 1188 (5th Cir. 1994)).7 “A trial court abuses its discretion
when its ruling is based on an erroneous view of the law or a clearly erroneous
assessment of the evidence.” Paz v. Brush Engineered Materials, Inc., 555 F.3d
383, 387 (5th Cir. 2009) (citation and internal quotation marks omitted).
However, even when evidence was admitted erroneously, we reverse only if the
error “affect[ed] a substantial right of the parties.” Brunet v. United Gas
Pipeline Co., 15 F.3d 500, 505 (5th Cir. 1994).
       The Trenados argue that compliance with FMVSS 109 is irrelevant, and
thus the district court abused its discretion by denying their motion in limine
seeking to exclude all evidence of such compliance. However, as set out above,
FMVSS 109 governed the product risk in this case and was thus relevant to the



       7
          Cooper argues that we should review the denial of the Trenados’ motion in limine for
plain error because Trenados did not object to the magistrate judge’s Memorandum and
Recommendations regarding the Trenados’ motion for summary judgment, which was based
on the same grounds as those raised in the motion in limine. However, the magistrate judge
stated that her ruling was “not intended to infringe upon the right of the trial court to rule in
any manner it deems proper on Plaintiffs’ pending motion in limine.” Thus, we review the
district court’s denial of the Trenados’ motion in limine for abuse of discretion. See Douglass
v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1428–29 (5th Cir. 1996) (predicating the application
of plain error review on “notice that such consequences will result from a failure to object”).

                                               11
  Case: 10-20675   Document: 00511807295     Page: 12   Date Filed: 03/30/2012



                                No. 10-20675

dispute. Consequently, we conclude that the district court did not abuse its
discretion in denying the Trenados’ motion in limine.
                             III. CONCLUSION
      For the reasons stated above, we AFFIRM the judgment of the district
court. Costs shall be borne by Plaintiffs–Appellants.




                                      12
