     Case: 12-40147     Document: 00512038209         Page: 1     Date Filed: 10/31/2012




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

                                                                            FILED
                                                                         October 31, 2012

                                     No. 12-40147                          Lyle W. Cayce
                                   Summary Calendar                             Clerk



CHAD MCCUNE; CARMEN MCCUNE,

                                                  Plaintiffs-Appellants
v.

GRACO CHILDREN’S PRODUCTS, INC.,

                                                  Defendant-Appellee



                   Appeal from the United States District Court
                         for the Eastern District of Texas
                              USDC No. 5:09-CV-107


Before SMITH, PRADO, and HIGGINSON, Circuit Judges.
PER CURIAM:*
        Plaintiffs-Appellants Chad and Carmen McCune challenge the district
court’s admission at trial of a video testing a theory of the car accident that
injured their son. They also challenge the district court’s decision to allow expert
testimony about aspects of the crash. 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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                                    No. 12-40147

1. Facts and Proceedings
      Four-year-old J.M. sat in a car seat in his mother’s SUV when she crashed
the vehicle into a farm tractor on July 29, 2007.1 J.M. lurched forward at
impact, suffering contusions, lacerations, and spinal injuries at the neck. He
became a paraplegic.
      J.M.’s parents (the “McCunes”) filed a lawsuit on July 29, 2009 against the
car seat manufacturer, Graco Children’s Products, Inc. They alleged that a
defect in Graco’s “TurboBooster” seat caused J.M.’s injuries.
      At trial the parties agreed that the McCune family had properly installed
J.M.’s seat. They also agreed that the impact caused the left armrest—which
helps a child use seat belts designed for adults—to detach from the seat.
      The parties disagreed on the position of the shoulder belt at impact. The
McCunes argued that J.M. wore his shoulder belt across the front of his body at
impact. They contended that a defect in the car seat caused the shoulder belt to
tear the armrest from the seat, allowing J.M. to roll out of the belt and pitch
forward.
      Graco argued that J.M. wore his shoulder belt behind his back at impact.
The company contended that it was this misuse of the belt that explained his
injuries. They added that the detachment of the armrest was not significant
because the armrest was a “comfort feature for the child” that provided “no
restraint of the torso.”
      Engineer William Van Arsdell was one of Graco’s key experts. He testified
that the car seat’s armrest could not detach if the belt was in front, and that
J.M.’s belt was behind his back at impact. He also said that a child would not
roll out of a shoulder belt worn in front even if the armrest detached.



      1
        J.M.’s mother, Carmen McCune, was apparently distracted and driving faster than
the speed limit.

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                                        No. 12-40147

       Van Arsdell based his testimony on physical evidence and six “sled tests”
he created.2 He sought to “recreate[] the forces of the accident” with the tests in
order to better understand the physics of the crash.3 As a result, he used the
same SUV and car seat models involved in the accident, along with a crash test
dummy approximating J.M.’s height and weight. He played video of each test
during his testimony.4
       Van Arsdell testified that the armrest did not detach in the three tests in
which he placed the belt across the front of the dummy and properly installed
the armrest. The armrest also did not detach when he weakened the armrest
but put the belt in front, and when he properly installed the armrest but put the
belt in the back.
       Van Arsdell still wanted to create a test in which the armrest detached
and the dummy rolled out of the shoulder belt. Van Arsdell explained that he
“wanted to understand what effect the armrest coming out would have on the
marks and on rollout, because as you've heard time and time again here,
plaintiffs have suggested that the armrest coming out caused [. . . J.M.] to roll
out of the belt.”




       2
        The physical evidence Van Arsdell examined included the actual vehicle and seat
involved in the crash, testing and design documents for the car seat, official reports concerning
the crash, and photographs of the accident scene.
       3
           The government had not tested an SUV crashing into a farm tractor.
       4
         Graco did not just rely on Van Arsdell’s tests to suggest misuse of the shoulder belt.
Instead, it showed that J.M.’s mom had indicated on a social networking website that J.M.
took his shoulder belt off before the crash. Graco also had experts Van Arsdell and Catherine
Corrigan, a biomechanical engineer, testify that: (1) there were no marks on J.M.’s body
suggesting that he pressed up against a shoulder belt; (2) the pattern of injuries indicated that
he jackknifed over the lap belt; and (3) the marks on the belt were consistent with behind-the-
back placement.

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                                        No. 12-40147

       Van Arsdell testified that, as a result, he placed the shoulder belt behind
the dummy’s back in Test 6, loosened the lap belt, removed screws from the
armrest, and snapped the armrest out of place.
       The Test 6 video was played during Van Arsdell’s testimony. The video
shows the armrest detaching from the car seat and the dummy’s upper torso
lurching forward before recoiling and slamming into the dummy’s legs. The
video lasts about 20 seconds, and resembles in style the first five test videos.
       The McCunes had sought to bar the Test 6 video, and testimony about the
video, in a pre-trial motion.5 At trial, they renewed their objection.
       The district court overruled the McCunes’ objection to the video. The
district court then repeated its pre-trial offer to give the jury a limiting
instruction regarding the video. The McCunes rejected the offer, believing that
the limiting instructions would not cure the purported prejudice.6 They also
wanted to preserve their right to appeal the use of the video.
       The McCunes proceeded to question Van Arsdell about Test 6 on cross-
examination, but only to highlight that the dummy’s injuries in the video
differed from those suffered by J.M. The McCunes also chose to play Test 6 in
both their closing argument and rebuttal to illustrate aspects of the accident.7
       The jury rendered a verdict against the McCunes on August 24, 2011,
finding that the car seat was not the “producing cause” of J.M.’s injures.
       On appeal the McCune’s raise two evidentiary issues: (1) whether the
district court erred in allowing Graco’s experts to testify that the placement of


       5
           The McCunes also had unsuccessfully challenged Van Arsdell’s credentials.
       6
         The district court still warned in its jury instructions that “slides and visual aids are
not evidence; they are used for the limited purpose of assisting with case presentation and in
an effort to help you follow the evidence presented over the course of the trial.”
       7
         Graco referenced Test 6 in its closing argument when discussing marks left on the
belt, but did not play the video.

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                                   No. 12-40147

the shoulder belt caused J.M.’s injuries when there was no reliable, scientific
basis to show that a behind-the-back belt could ever tear out a properly installed
TurboBooster armrest and when there was no factual foundation that the belt
was behind J.M.’s back; and (2) whether the district court erred in allowing the
jury to see and consider the results of a test performed by Graco that recreated
an accident consistent with Graco’s behind-the-back causation theory.
2. Standard of Review
       This court reviews a district court’s evidentiary rulings for abuse of
discretion. E.E.O.C. v. Manville Sales Corp., 27 F.3d 1089, 1092-93 (5th Cir.
1994), cert. denied, 513 U.S. 1190 (1995). A district court abuses its discretion
when a ruling is “based on an erroneous view of the law or a clearly erroneous
assessment of the evidence.” Bocanegra v. Vicmar Servs., Inc., 320 F.3d 581, 584
(5th Cir. 2003), cert. denied, Sandoz v. Bocanegra, 540 U.S. 825 (2003). Even if
there is an abuse of discretion, the district court’s error is harmless and not
reversible “unless the ruling affected substantial rights of the complaining
party.” Id.
3. The Experts’ Testimony
      The district court must ensure under Fed. R. Evid. 702 that expert opinion
testimony “rests on a reliable foundation and is relevant to the task at hand.”
Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 597 (1993). The testimony
is relevant if it helps “the trier of fact to understand the evidence or to determine
a fact in issue.” Fed. R. Evid. 702(a); see also Daubert, 509 U.S. at 591-92. The
testimony is reliable if the expert bases the testimony on “sufficient facts or
data,” uses “reliable principles and methods,” and “reliably applie[s] the
principles and methods to the facts of the case.” Fed. R. Evid. 702(b)-(d); see also
Daubert, 509 U.S. at 593-94.




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                                       No. 12-40147

      Here, the McCunes argue that the district court abused its discretion in
allowing Graco’s experts to testify that the shoulder belt was behind J.M.’s back
and that a belt in such a position could tear out the car seat’s armrest.8
      The district court did not abuse its discretion in allowing Graco’s experts’
testimony concerning the seat belt and armrest because the testimony was
relevant and rested on a reliable foundation. The experts’ testimony was relevant
because testimony about the position of the belt, and the armrest detachment,
helped the jury to understand the key issue at trial: whether the car seat was a
producing cause of J.M.’s injuries. The position of the belt was relevant because
Graco argued that it was the placement of the belt, and not a defect in its seat,
that caused J.M.’s injuries. The armrest detachment was relevant because the
McCunes argued that the detachment was a defect that allowed J.M. to roll out
of the shoulder belt.
      The experts’ testimony rested on a reliable foundation because they based
their conclusions on both tests exploring crash conditions and their analysis of
the physical evidence from the accident.
      Van Arsdell explained in detail the methodology of the tests before showing
the videos.9 He testified, for example, that the tests used the same vehicle and
car seat models involved in the accident, along with a dummy that approximated
J.M.’s height and weight.10


       8
        The McCunes do not elaborate on this argument in their briefs. They also do not
explain whose testimony they are challenging, although it appears that they focus on
statements made by experts William Van Arsdell and Catherine Corrigan.
       9
        Graco contends that the McCunes waived their right to challenge the admissibility
of Van Arsdell’s opinion about the placement of the shoulder belt because the McCunes did not
raise the issue in their pre-trial Daubert motion. However, the McCunes appeared to
challenge the behind-the-back shoulder belt theory in a pre-trial motion in limine. As a result,
it appears that the they preserved their claim of error. Fed. R. Evid. 103(a).
       10
         The McCunes apparently found the test videos reliable enough to play during their
closing argument and rebuttal to illustrate various aspects of the crash.

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                                      No. 12-40147

      Van Arsdell did not, however, just base his conclusions on the videos. Van
Arsdell testified that he examined the vehicle and the seat, read design
documents and official reports, viewed photographs of the accident scene, and
conducted a “surrogate study” to help ascertain J.M.’s position at impact.
Likewise, Van Arsdell and expert Catherine Corrigan testified that there were
other indications based on the physical evidence from the crash that the belt was
behind J.M.’s back: there were no marks on J.M.'s body suggesting that he
pressed up against a shoulder belt; the pattern of injuries indicated that he
jackknifed over the lap belt; and the marks on the belt were consistent with
behind-the-back placement.
      The McCunes are correct that none of Van Arsdell’s tests showed a behind-
the-back belt tearing the armrest from the seat. The tests do suggest, however,
that the behind-the-back placement could stress the armrest, and that a properly
worn shoulder belt could not detach the armrest.11 Moreover, Graco presented
testimony that the detachment was not significant because the armrest is a
“comfort feature for the child” that provides “no restraint of the torso.” As a
result, the tests’ failure to show a behind-the-back belt tearing out a properly
installed armrest is not, as the McCunes suggest, a smoking gun.
      In sum, the district court did not abuse its discretion in admitting Graco’s
experts’ testimony about the belt position and armrest detachment because the
testimony was relevant and rested on a reliable foundation.
4. Test Video 6
      A district court has “wide discretion to admit evidence of experiments
conducted under substantially similar conditions” as the underlying accident.



       11
          The armrest did not detach in any of Van Arsdell’s tests in which he placed the
shoulder belt in the proper position. The Test 3 video—simulating the more moderate collision
forces suggested by the McCunes—shows the behind-the-back shoulder belt pulling up on the
armrest, but not causing detachment.

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                                     No. 12-40147

United States v. Norris, 217 F.3d 262, 270 (5th Cir. 2000) (quoting Barnes v. Gen.
Motors Corp., 547 F.2d 275, 277 (5th Cir. 1977)).          If a party offers the
demonstrative evidence only as an illustration of general scientific principles,
however, and not as a re-enactment of disputed events, it need not pass this
“substantial similarity” test. Muth v. Ford Motor Co., 461 F.3d 557, 566 (5th Cir.
2006). The district court may still, of course, exclude demonstrative evidence if
the danger of unfair prejudice or confusion posed by the evidence substantially
outweighs its probative value. Fed. R. Evid. 403.
      Here, the McCunes argue that the district court abused its discretion in
admitting Test 6 because the video was a re-enactment that was not substantially
similar to the underlying accident. The McCunes contend—and Graco does not
dispute—that the test differed from the accident because expert Van Arsdell
weakened the armrest. They add that Van Arsdell confused the jury into
thinking that the test was a re-enactment of the accident by using the same
vehicle and car seat models involved in the crash, and by testifying that the tests
sought to “recreate” the accident.
      The McCunes also argue that Barnes controls the facts in this case. In
Barnes, the plaintiff claimed that defective engine mounts caused his injuries in
a car accident. Barnes, 547 F.2d at 276. The plaintiff’s expert created a test
“purport[ing] to simulate the circumstances” of the accident showing that the
engine mounts were defective, yet used a test vehicle that did not even include
the mounts. Id. at 277-78. This court held that the admission of visual evidence
of the experiment was in error because, without the mounts, the experiment “had
no probative value” and instead “merely demonstrated well known physical
happenings resulting from universally accepted principles disputed by no one.”
Id. at 277.
      The district court did not abuse its discretion in allowing Graco to play and
discuss the Test 6 video because the video did not re-enact the accident.

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                                   No. 12-40147

      First, Van Arsdell testified that he weakened the armrest to see what
marks its detachment would leave on the seatbelt—not to re-enact the accident.
The McCunes highlight Van Arsdell’s use of the word “recreate” in reference to
the test videos as evidence that Test 6 was a re-enactment. Examining Van
Arsdell’s remarks in context, however, reveals that Van Arsdell testified that he
sought to recreate the forces of the accident, not the crash itself.
      Second, the fact that Graco played video of all six tests—each exploring a
different accident scenario—made clear that the tests were not simulations, but
instead illustrations of crash theories.
      Third, Graco minimized any prejudice resulting from the video by limiting
its use. For example, Graco made a brief reference to, but did not play, the video
in its closing argument. It was the McCunes who played the video during their
closing argument and rebuttal.
      Fourth, the district court gave instructions cautioning the jury not to
consider visual aids as evidence. The district court did not offer warnings specific
to Test 6, but only because the McCunes rejected such instructions.
      Fifth, unlike in Barnes, the expert introducing the test video in this case
did not “purport to simulate” the circumstances of the crash. Instead, he made
clear that the video tested the limited proposition that a detached armrest would
leave a mark on the shoulder belt. Moreover, unlike in Barnes, the test here had
probative value because it showed that a detached armrest could produce marks
similar to those left on the belt in the accident.
      In sum, the district court did not abuse its discretion in allowing Graco to
play and discuss the Test 6 video because Graco made clear that the video was
not a re-enactment of the accident. We therefore do not address whether Test 6
was substantially similar to the crash.
5. Conclusion
      Accordingly, we AFFIRM the judgment of dismissal based on the verdict.

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