                                                                            FILED
                           NOT FOR PUBLICATION
                                                                            MAR 20 2017
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


LUPI EDWARDS, individually and as                No.   15-55577
decedent Fiailoa Saupo Edwards
successor-in-interest; R. S. A., a minor by      DC No. CV 12-10994 PA
Mark Leonard Sallus as Guardian Ad
Litem,
                                                 MEMORANDUM*
              Plaintiffs-Appellants,

 v.

FORD MOTOR COMPANY,

              Defendant-Appellee.


                    Appeal from the United States District Court
                       for the Central District of California
                     Percy Anderson, District Judge, Presiding

                       Argued and Submitted March 10, 2017
                               Pasadena, California

Before:      TASHIMA and NGUYEN, Circuit Judges, and MARBLEY,** District
             Judge.



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
            The Honorable Algenon L. Marbley, United States District Judge for
the Southern District of Ohio, sitting by designation.
      Lupi Edwards and R.S.A. (“appellants”), successors-in-interest to decedent

Fiailoa Edwards, appeal from a judgment entered pursuant to a jury verdict in favor

of Ford Motor Company (“Ford”) on appellants’ claim that Fiailoa Edwards’

vehicle was defectively designed. We have jurisdiction under 28 U.S.C. § 1291,

and we affirm.

      Fiailoa Edwards was driving south on Interstate 5 in his 2002 Ford Explorer

Sport Trac, when traffic ahead of him abruptly began to slow. To avoid a collision,

he veered onto a shoulder at an initial speed of sixty miles per hour. At a speed of

30 to 35 miles per hour, his vehicle rolled a total of 2.75 times. The roof of the

vehicle crushed eight inches vertically and six inches laterally. Edwards died from

blunt force injuries to his head, neck, and chest.

      Appellants sued Ford. They alleged that the Explorer was defectively

designed because the roof was not sufficiently rigid. Appellants’ theory was that

the roof should have only crushed two or three inches vertically, rather than eight

inches vertically and six inches laterally. Before trial, the district court granted

Ford’s motion in limine to exclude evidence and argument on the consumer




                                            2
expectations test for design defect liability. At trial, the court gave an instruction

on the risk-benefit test for design defect liability. The jury found in Ford’s favor.1

       Appellants now argue that the district court erred in granting Ford’s motion

in limine and failing to give an instruction on the consumer expectations test. Ford

contends that appellants did not preserve the issue below.2 We need not decide that

question because, even assuming the issue has been preserved, the consumer

expectations test does not apply.

       The consumer expectations test “is reserved for cases in which the everyday

experience of the product’s users permits a conclusion that the product’s design

violated minimum safety assumptions, and is thus defective regardless of expert

opinion about the merits of the design.” Soule v. Gen. Motors Corp., 882 P.2d

298, 308 (Cal. 1994) (emphasis omitted). “[W]hen the ultimate issue of design

defect calls for a careful assessment of feasibility, practicality, risk, and benefit, the

case should not be resolved simply on the basis of ordinary consumer

expectations.” Id. at 305 (emphasis added). The district court did not err in

excluding the consumer expectations test under this standard. Drivers’ everyday

       1
             Appellants also alleged that the vehicle was defective because it
lacked a rollover-activated side-curtain airbag. Appellants do not pursue that claim
on appeal.
       2
              The district court made “tentative” rulings on this issue at a series of
pretrial hearings.
                                            3
experiences do not allow for the formation of reasonable expectations as to the

degree that a vehicle’s roof should crush during a rollover. Moreover, appellants’

theory of roof defect called for expert opinion by a structural engineer, who

assessed the feasibility, risks, and benefits of the Explorer’s roof as compared to a

roof reinforced with polyurethane foam and high-grade steel.

      Appellants contend that the district court should have given them the

opportunity to show that consumers do have expectations as to the amount of

acceptable roof deformation during a rollover. We are unpersuaded. Although

plaintiffs may introduce, for example, owners’ manuals or advertisements to show

what consumers expect of a particular vehicle, appellants do not claim to have any

such evidence. See, e.g., Mansur v. Ford Motor Co., 129 Cal. Rptr. 3d 200, 211

(Ct. App. 2011).

      Appellants also point out that “the inherent complexity of the product itself

is not controlling on the issue of whether the consumer expectations test applies.”

See Romine v. Johnson Controls, Inc., 169 Cal. Rptr. 3d 208, 217 (Ct. App. 2014).

While that may be true, our decision is not based on the complexity of the product,

but rather the lack of consumer expectations regarding the extent to which the

Explorer’s roof would crush in a multiple rollover accident.




                                           4
      The district court correctly concluded that the “ordinary consumer of

automobiles cannot reasonably expect that a car’s frame” would remain intact

under those circumstances. See Soule, 882 P.2d at 310.

      AFFIRMED.




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