                          UNPUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


SHARIN C. BROWN,                       
                Plaintiff-Appellant,
                 v.
                                                  No. 99-2513
FORD MOTOR COMPANY, a Delaware
corporation,
             Defendant-Appellee.
                                       
           Appeal from the United States District Court
          for the Eastern District of Virginia, at Norfolk.
                Henry C. Morgan Jr., District Judge.
                          (CA-98-880-2)

                      Argued: September 29, 2000

                       Decided: March 23, 2001

       Before LUTTIG and WILLIAMS, Circuit Judges, and
  Frederick P. STAMP, Jr., Chief United States District Judge for
   the Northern District of West Virginia, sitting by designation.



Affirmed by unpublished opinion. Judge Luttig wrote the majority
opinion, in which Chief Judge Stamp joined. Judge Williams wrote
a dissenting opinion.


                             COUNSEL

ARGUED: Martin Joseph McGetrick, CHANDLER, FRANKLIN &
O’BRYAN, Charlottesville, Virginia, for Appellant. Earle Duncan
Getchell, Jr., MCGUIRE, WOODS, BATTLE & BOOTHE, L.L.P.,
2                     BROWN v. FORD MOTOR CO.
Richmond, Virginia, for Appellee. ON BRIEF: Bradford M. Young,
CHANDLER, FRANKLIN & O’BRYAN, Charlottesville, Virginia,
for Appellant. Roswell Page, III, MCGUIRE, WOODS, BATTLE &
BOOTHE, L.L.P., Richmond, Virginia; Richard J. Cromwell,
MCGUIRE, WOODS, BATTLE & BOOTHE, Norfolk, Virginia, for
Appellee.



Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).


                               OPINION

LUTTIG, Circuit Judge:

   Appellant Sharin Brown was severely injured when she lost control
of her 1991 Ford Ranger pickup truck and it rolled several times.
Brown sued appellee Ford Motor Company for breach of implied
warranty and negligent design arising out of Ford’s design, manufac-
ture, and marketing of the Ranger. A jury rendered verdict in favor
of Ford and Brown appeals, contending that the district court violated
Va. Code Ann. § 46.2-1094(D) when it permitted Ford to introduce
evidence that she was not wearing her seat belt at the time of the acci-
dent. For the reasons that follow, we affirm.

                                    I.

   Brown was driving her 1991 Ford Ranger pickup truck on a stretch
of road in Suffolk, Virginia, when she encountered loose gravel that
caused her to lose control of her truck. The truck slid and rolled sev-
eral times. Brown was ejected and sustained severe injuries.

   Brown subsequently filed suit in the Eastern District of Virginia,
alleging that Ford was liable for her injuries, in both contract and tort.
J.A. 24-28. Shortly before trial, Brown and Ford filed competing
motions in limine to determine the admissibility of evidence of seat
belt nonuse under Virginia statute. See Va. Code Ann. § 46.2-
                      BROWN v. FORD MOTOR CO.                           3
1094(D). After oral argument on the motions, the magistrate judge
ruled that the jury could consider Brown’s failure to wear her seat
belt, but only in its consideration of the following issues:

     Whether the truck, taken as a whole, was designed negli-
     gently,

     Whether the defect alleged by the plaintiff was the proxi-
     mate cause of the injury to the plaintiff or whether any fail-
     ure to use a seat belt was the proximate cause of the injury,

     Whether the plaintiff misused the product.

J.A. 37. Brown filed a written objection to the magistrate judge’s rul-
ing, which was overruled by the district court. J.A. 79-80.

   At trial, Brown was the first to raise the issue of seat belt use,
responding during her cross-examination that she habitually wore her
seat belt. J.A. 129. David Brown, appellant’s husband, testified to the
same during his direct examination. Thereafter, Ford, in presenting its
case, elicited testimony from both the investigating officer and an
expert witness that Brown was unrestrained at the time of the accident
in question. J.A. 137-38, 192. In closing argument, Ford’s counsel
emphasized on several occasions that "[i]f Mrs. Brown had been
belted in her seat she would not have been injured or ejected." J.A.
268, 283, 286.

   At the conclusion of trial, the district court instructed the jury that
it could consider evidence of seat belt nonuse in determining whether
Ford "negligently designed the motor vehicle" and "in whether the
motor vehicle as manufactured and sold was reasonably safe when
used for its intended purpose and also in determining whether the
plaintiff misused the motor vehicle." J.A. 255. The district court cau-
tioned the jury, however, that it could not find Brown contributorily
negligent based upon a finding that she had not been wearing her seat
belt. J.A. 255.

  The jury returned a verdict in Ford’s favor on Brown’s claims of
negligent design and breach of warranty. J.A. 301. Brown then filed
4                     BROWN v. FORD MOTOR CO.
a motion seeking a new trial, maintaining, inter alia, that the district
court’s limited admission of evidence of seat belt nonuse contravened
section 46.2-1094(D) of the Virginia Code. The motion for a new trial
was denied, and this appeal followed. J.A. 317.

                                  II.

   This case arises under our diversity jurisdiction, and we are there-
fore obliged, under Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938),
to apply state substantive law and federal procedural law. Brown
argues on appeal, as she did below, that section 46.2-1094(D) of the
Virginia Code is a substantive provision of law that mandates that
evidence of seat belt nonuse is inadmissible for any purpose. Ford, on
the other hand, argues that section 46.2-1094(D) is a procedural pro-
vision only. We find it unnecessary to resolve whether section 46.2-
1094 is substantive or procedural, however, because we hold that sec-
tion 46.2-1094 did not bar Ford from presenting evidence at trial
merely that Brown was not wearing her seat belt at the time of the
accident.

   Section 46.2-1094(A) of the Virginia Code requires every person
who is at least 16 years of age and who occupies the front seat of a
motor vehicle "to wear the appropriate safety system at all times
while the motor vehicle is in motion on any public highway." Va.
Code Ann. § 46.2-1094(A). Section 46.2-1094(C) subjects any person
"who violates this section . . . to a civil penalty of twenty-five dol-
lars." Id. § 46.2-1094(C). Section 46.2-1094(D), with which we are
concerned here, in turn provides that,

    [a] violation of this section shall not constitute negligence,
    be considered in mitigation of damages of whatever nature,
    be admissible in evidence or be the subject of comment by
    counsel in any action for the recovery of damages arising
    out of the operation, ownership, or maintenance of a motor
    vehicle, nor shall anything in this section change any exist-
    ing law, rule or procedure pertaining to any such civil
    action.

Id. (emphasis added).
                      BROWN v. FORD MOTOR CO.                           5
   Neither the first nor the second clause of section 46.2-1094(D) is
implicated in the case before us. As noted, the district court expressly
instructed the jury that it could not find Brown contributorily negli-
gent based upon a finding that she had not been wearing her seat belt
at the time of the accident. J.A. 255. Thus, the jury was not permitted
to find Brown negligent based upon a "violation of [section 46.2-
1094]," however this phrase is construed. Moreover, the district court
did not permit the jury to consider the evidence of Brown’s seat belt
nonuse on an issue of whether Brown’s injuries would have been less
serious had she been wearing her seat belt; rather, the district court
permitted consideration of seat belt nonuse only on the questions of
whether the overall safety system of the Ford Ranger was defectively
or negligently designed. Thus, neither was "a violation of [section
46.2-1094]" — again, however this phrase is construed — "consid-
ered in mitigation of damages."

   The only question before us is whether "[a] violation of [section
46.2-1094]" was impermissibly "admi[tted] in evidence" or allowed
to be "the subject of comment by counsel" within the meaning of sec-
tion 46.2-1094(D) when the district court allowed Ford to introduce
its contested evidence of Brown’s seat belt nonuse. Although we, like
the district court, are without reported cases construing section 46.2-
1094 from the Commonwealth to aid in our interpretation, we are sat-
isfied that it was not.

   We acknowledge that the phrase "[a] violation of [section 46.2-
1094]" in section 46.2-1094(D) may plausibly be construed to refer
to the underlying conduct that is proscribed by section 46.2-1094 —
namely, the nonuse of a seat belt while a motor vehicle is in motion.
That is, we do not think it unreasonable to read section 46.2-1094(D)
as prohibiting admission or comment by counsel upon mere evidence
of seat belt nonuse, as appellant argues the section should be read. On
balance, however, we are convinced that the better interpretation of
this phrase is as a reference to an official determination that the provi-
sion has been violated, such as a law enforcement officer’s citation
for seat belt nonuse (or at least his conclusion to that effect) or a for-
mal administrative or judicial finding of nonuse. We therefore believe
that section 46.2-1094(D) as a whole is most appropriately understood
as forbidding only the admission into evidence or comment upon such
an official determination that the section was violated, and at most as
6                       BROWN v. FORD MOTOR CO.
forbidding admission of or comment upon evidence that would be
sufficient to establish all of the elements of a violation of the section.
Because section 46.2-1094 does not categorically prohibit seat belt
nonuse by all persons under all circumstances, but, rather, prohibits
nonuse only by specified persons in specified circumstances, see Va.
Code Ann. § 46.2-1094(A) (requiring seat belt use only by persons
over age sixteen who are in the front seat of a vehicle moving on a
public highway); id. at § 46.2-1094(B) (exempting eight classes of
persons from the statute), evidence of mere seat belt nonuse, in and
of itself, in no sense at all constitutes evidence of "a violation" of the
statute.

   Not only is this understanding of section 46.2-1094(D) most conso-
nant with the plain language enacted by the state legislature, but its
correctness is confirmed by a reading of the Commonwealth’s statutes
in pari materia. When the Virginia legislature has intended to prohibit
the admission into evidence of mere seat belt nonuse, either generally
or for specific purposes, it has done so plainly and unequivocally in
terms that not only unmistakably capture that intent, but also distin-
guish that intent from the different intent that we conclude is evident
in section 46.2-1094(D). Perhaps most notable in this regard is Va.
Code § 46.2-1092, which limits the purposes for which evidence of
seat belt nonuse after installation may be used. In that statute, for
example, the legislature specifically identified seat belt nonuse as that
which may not be considered, providing as follows:

        Failure to use the safety lap belts or a combination of lap
        belts and shoulder harnesses after installation shall not be
        deemed to be negligence. Nor shall evidence of such nonuse
        of such devices be considered in mitigation of damages of
        whatever nature.

(Emphasis added).1 Given the striking substantive, textual, and struc-
    1
   Other states have similarly enacted statutes that unequivocally bar
evidence of seat belt nonuse, rather than premising inadmissibility on a
"violation" of statute. See, e.g., Conn. Gen. Stat. Ann. § 14-100A
("Failure to wear a seat safety belt shall not be considered as contributory
negligence nor shall such failure be admissible evidence in any civil
                       BROWN v. FORD MOTOR CO.                             7
tural parallels between this section and section 46.2-1094(D), the leg-
islature’s different word choice in the later-enacted section 46.2-
1094(D) must be regarded as significant. See, e.g., 2A N. Singer, Stat-
utes and Statutory Construction § 46.06 (6th ed. 2000) (noting that
use of different "terms within related statutes generally implies that
different meanings were intended"). If the legislature had intended in
section 46.2-1094 to forbid admission of any and all evidence of seat
belt nonuse, we must assume that it would have invoked language to
the effect of that employed in section 46.2-1092, if not that language
precisely.

   The dissent finds convincing as to the meaning of the phrase "a
violation of this section" the implied distinction between a "citation"
and "a violation of this section" found in Va. Code § 46.2-1094(F).
Even absent Va. Code § 46.2-1092, we would not subscribe to this
admitted distinction the significance that the dissent does because,
among other reasons, an official determination of a violation always
precedes the issuance of a citation for that determined violation. Even
more importantly, however, unlike Va. Code § 46.2-1092, which is
virtually identical in all relevant respects to Va. Code § 46.2-1094(D),
Va. Code § 46.2-1094(F) is not substantively, textually, or structur-
ally like Va. Code § 46.2-1094(D), and consequently is a compara-
tively poor provision from which to infer the legislature’s intent as to
section 46.2-1094(D).

   Accordingly, because Ford’s evidence of Brown’s nonuse of her
seat belt did not, in and of itself, constitute evidence of "a violation
of [section 46.2-1094],"2 the district court’s admission into evidence

action."); Kan. Stat. Ann. § 8-2504 ("Evidence of failure of any person
to use a safety belt shall not be admissible in any action for the purpose
of determining any aspect of comparative negligence or mitigation of
damages."); Okla. Stat. Ann. § 12-420 ("[T]he use or nonuse of seat belts
shall not be submitted into evidence in any civil suit in Oklahoma.").
   2
     We believe that the dissent simply must indulge in too much inference
and appellate trial of the case to reach definitively the conclusion that
evidence was in fact introduced that would establish each and every ele-
ment of the offense to the satisfaction of the jury. It bears noting that the
ultimate question here is not whether it is fair to believe that these ele-
ments could have been proven, but, rather, whether, as a technical matter
of law, evidence to prove every element of the offense was in fact prop-
erly introduced. This, we are confident, cannot be said.
8                      BROWN v. FORD MOTOR CO.
of that evidence did not contravene section 46.2-1094(D). The judg-
ment of the district court therefore is affirmed.3

                                                             AFFIRMED

WILLIAMS, Circuit Judge, dissenting:

   The majority reads Va. Code Ann. § 46.2-1094(D) to forbid only
the admission into evidence, or comment by counsel upon, an official
determination that Va. Code Ann. § 46.2-1094’s requirement of seat
belt use has been violated, or "at most" to forbid admission of, or
comment on, evidence that would establish all of the elements of a
violation of § 46.2-1094. Majority Op. at 5-6. Because the majority’s
first interpretation of § 46.2-1094(D) would not obtain under tradi-
tional methods of statutory construction, and because the majority’s
second interpretation supports a finding of error on the facts of this
case and undermines the majority’s rationale for its first interpreta-
tion, I respectfully dissent.

                                    I.

                                    A.

   Va. Code Ann. § 46.2-1094(D) states that "[a] violation of this sec-
tion shall not constitute negligence, be considered in mitigation of
damages of whatever nature, be admissible in evidence or be the sub-
ject of comment by counsel in any action for the recovery of damages
arising out of the operation of a motor vehicle." Va. Code Ann.
    3
    Brown also argues on appeal that the district court abused its discre-
tion when it denied Brown’s request to clarify that her traffic offenses
arising out of the accident were later dismissed. Although Ford was the
first party to mention the charges during opening argument, it did so
because they were included within a police accident report that was a
stipulated exhibit. Even if Ford’s statement about the charges was
improper, the district court offered to provide a curative instruction, an
offer that Brown ultimately declined. It also ordered the parties to submit
a redacted version of the exhibit. Given these actions by the district
court, we cannot conclude that the court abuses its discretion in denying
Brown’s request to clarify the disposition of her traffic charges.
                        BROWN v. FORD MOTOR CO.                             9
§ 46.2-1094(D) (Michie 1998). The majority asserts that the best
reading of this provision is that it merely prohibits the admission of
evidence of an "official determination that the provision has been vio-
lated, such as a law enforcement officer’s citation for seat belt nonuse
(or at least his conclusion to that effect) or a formal . . . finding of
nonuse."1 Majority Op. at 5. Yet, this reading, which equates a "viola-
tion" with a citation or an official determination of a violation, is at
odds with the ordinary legal meaning of the word "violation." The
Supreme Court, based upon the definition offered by a leading legal
dictionary, has defined "violation" to mean "an act or conduct that is
contrary to law." See Richardson v. United States, 526 U.S. 813, 818
(1999) (citing BLACK’S LAW DICTIONARY 1570 (6th ed. 1990)).

   Further, as the majority notes, the use of different terms within
related statutory provisions gives rise to an implication that different
meanings were intended. See Majority Op. at 7 (citing 2A N. Singer,
Statutes and Statutory Construction § 46.06 (6th ed. 2000)). Here, Va.
Code Ann. § 46.2-1094(D)’s reference to a "violation of this section"
contrasts with § 46.2-1094(F)’s explicit reference to the issuance of
a "citation for a violation of this section." Thus, one may be cited "for
a violation" — implying that "a violation" refers to something other
than the official determination of a violation itself. The statute itself
discusses "a violation" as antecedent to, and distinct from, a citation
for a violation. The structure of § 46.2-1094 and the ordinary legal
meaning of the word "violation" thus lead me to conclude that "a vio-
lation" of § 46.2-1094 as used in § 46.2-1094(D) refers to the conduct
that establishes all of the elements of a violation of § 46.2-1094 rather
than to the fact of an official citation or adjudication of a violation.

                                     B.

  In its alternative holding, the majority suggests the correctness of
  1
   I note that if an officer’s "conclusion to [the] effect" of "seat belt non-
use" constitutes an official determination of a violation, such an official
determination was introduced at trial. The investigating officer, Ronald
Kline, testified that he determined from the evidence at the accident
scene that Ms. Brown had not been wearing her seat belt, and checked
a box on the accident report form indicating his conclusion that she had
been unbelted. (J.A. at 143).
10                     BROWN v. FORD MOTOR CO.
just this interpretation of § 46.2-1094(D), and leads me to conclude
that error has occurred on the facts of this case. See Majority Op. at
5-6 (interpreting § 46.2-1094(D) "at most as forbidding admission of
or comment upon evidence that would be sufficient to establish all of
the elements of a violation.").

   Va. Code Ann. § 46.2-1094 requires all persons "at least sixteen
years of age and occupying the front seat of a motor vehicle equipped
or required . . . to be equipped with a safety belt system" to wear the
safety belts "at all times while the motor vehicle is in motion on any
public highway." Va. Code Ann. § 46.2-1094(A). Further, the statute
provides eight specific exceptions: Seat belt use is not required of (1)
persons for whom a physician has determined use would be medically
impractical, provided that such persons carry a signed written state-
ment to this effect; (2) law-enforcement officers when use would be
impractical; (3) persons performing the duties of a rural mail carrier;
(4) persons performing the duties of a newspaper carrier; (5) drivers
of taxicabs; (6) commercial or municipal delivery persons; (7) per-
sons performing the duties of a utility meter reader, or (8) law
enforcement personnel enforcing parking laws. See Va. Code Ann.
§ 46.2-1094(B) (enumerating these eight exceptions).

   The majority reasons that "evidence of mere seat belt nonuse" does
not fall within the ambit of § 46.2-1094(D) because § 46.2-1094 does
not require use of seatbelts in all cases. Majority Op. at 6. In this case,
however, evidence was introduced at trial which would be sufficient
to establish each element of a violation of § 46.2-1094.2 Evidence was
introduced at trial showing that Sharin Brown was (A) a person; (B)
at least 16 years of age (a compelled inference from the fact that her
sixteen-year-old son was in the passenger seat) (J.A. at 108, 174), (C)
occupying the front seat (she was driving) (J.A. at 111), of (D) a vehi-
cle equipped with seat belts (J.A. 191-92), (E) who was not belted,
(J.A. at 143), (F) while traveling on a public highway (J.A. at 123-
  2
   The issue is not whether each element was established "to the satis-
faction of the jury," Majority Op. at 7 n.2. Instead, the proper focus of
the inquiry is on whether evidence which would, if credited by the jury,
prove each element of a violation was introduced; § 46.2-1094 regulates
the introduction of evidence and comment by counsel, not the jury’s pro-
cess of weighing evidence.
                       BROWN v. FORD MOTOR CO.                           11
24). Thus, each of the elements set forth in § 46.2-1094(A) was estab-
lished at trial. As to the exceptions enumerated in § 46.2-1094(B), the
evidence introduced at trial establishes that Ms. Brown was driving
with her son on a weekend trip to the doctor’s office and a local shop-
ping center, refuting any contention that Ms. Brown was eligible for
the exceptions available to law-enforcement officers, rural mail carri-
ers, newspaper carriers, taxi drivers, delivery persons, utility meter
readers, or law enforcement personnel enforcing parking laws. (See,
e.g., J.A. at 107-08) (describing the personal nature of Ms. Brown’s
trip.) Thus, evidence introduced at trial was sufficient to establish all
of the elements of a violation and to negate seven of the eight excep-
tions provided in § 46.2-1094(B). The remaining exception, for per-
sons whose use of a seatbelt has been judged impractical by a
physician due to a medical condition, would seem to be an affirmative
defense rather than an element of a violation of § 46.2-1094. It cannot
be the Commonwealth of Virginia’s burden to establish in an enforce-
ment action under § 46.2-1094 that a person charged with violating
that section has not been certified as exempt by any doctor. Thus, evi-
dence sufficient to establish each of the elements of a violation of
§ 46.2-1094 was introduced at trial.3
  3
    Further, the majority’s alternative holding powerfully undercuts the
force of the majority’s argument that its approach is supported by the
need to attach significance to the legislature’s different word choice in
related sections of the Virginia Code. The majority notes that Va. Code
Ann. § 46.2-1094(D) refers to a "violation of this section," whereas Va.
Code Ann. § 46.2-1092 refers to "failure to use the safety lap belts."
Thus, the majority reasons that "the legislature’s different word choice
in the later-enacted section 46.2-1094(D) must be regarded as signifi-
cant," supporting the conclusion that § 46.2-1094(D) does not forbid
mere evidence of seat belt nonuse. See Majority Opinion at 7. But, the
majority’s alternative holding succeeds in respecting the legislature’s dif-
ferent choice of words; "failure to wear the safety lap belts" is broader
than a "violation" of § 46.2-1094, because the elements of a § 46.2-1094
violation exclude some instances of failure to wear a seat belt, such as
cases in which one is not occupying the front seat of a vehicle, is under
16 years of age, or is not traveling on a public highway. The need to
attach significance to the legislature’s different word choice does not
provide a good reason for preferring the majority’s first interpretation
over its second one, and for the reasons I have stated, I believe the major-
ity’s second interpretation supports a finding of error.
12                    BROWN v. FORD MOTOR CO.
                                   II.

   Because I conclude that § 46.2-1094 by its terms forbids the intro-
duction of the evidence presented at trial in this case, I find it neces-
sary to address whether § 46.2-1094 is a substantive provision that
governs in the federal courts, or is instead a mere procedural rule that
is inapplicable in the federal courts. I would hold that the Virginia
provision at issue is inextricably bound up with a substantive Virginia
policy of refusing to attach liability in cases arising out of motor vehi-
cle accidents to a party’s failure to wear a seatbelt as required by law
and thus governs in federal courts adjudicating claims that arise under
Virginia law. I note at the outset that although § 46.2-1094(D) comes
without the benefit of extensive legislative history or a rich tradition
of Virginia caselaw illuminating the scope of the substantive policy
that it embodies, the Virginia Supreme Court has held that a single
statutory provision enacted by the Virginia General Assembly is suffi-
cient to establish a public policy of Virginia. See Lawrence Chrysler
Plymouth v. Brooks, 465 S.E.2d 806, 808 (Va. 1996). Further, § 46.2-
1094(D) is arguably a reaction to a federal court ruling stating that a
predecessor provision, which stated only that failure to wear a seat
belt did not constitute evidence of negligence, did not bar admission
of evidence of seat belt nonuse relative to the issue of overall safe
product design. See Wilson v. Volkswagen of Am., 445 F. Supp. 1368,
1374 (E.D. Va. 1978). The Wilson court pointed to a Minnesota stat-
ute prohibiting the introduction of seat belt nonuse evidence for any
purpose whatsoever "in any litigation involving personal injuries or
property damage resulting from the use or operation of any motor
vehicle" as an example of how Virginia would have to write its statute
in order for it to prohibit the introduction of seatbelt nonuse evidence
on the issue of overall design safety. See id. (quoting Minn. Stat. Ann.
§ 169.685(4)). Following Wilson, the Virginia Legislature enacted
§ 46.2-1094(D), using language which, in substance, tracks the lan-
guage the Wilson court stated would be necessary to bar the introduc-
tion of seatbelt nonuse evidence as to issues of overall design safety.
Now that Virginia has responded to the federal courts by broadening
the scope of its seatbelt evidence exclusion to remove all ambiguity
in cases such as these, the majority holds that evidence of a "viola-
tion" of § 46.2-1094 is to be read so narrowly as to permit the intro-
duction of evidence of seatbelt nonuse in most cases. I believe that the
remarkable similarity between the language of the Minnesota statute
                        BROWN v. FORD MOTOR CO.                              13
cited in Wilson and the later-enacted § 46.2-1094(D) gives rise to an
inference that § 46.2-1094(D) was in part a reaction to the Wilson
decision — and that inference, along with the plain language of the
statute, convinces me that § 46.2-1094(D) reflects a considered sub-
stantive policy of the state of Virginia, which it is the duty of the fed-
eral courts to effectuate in a diversity action.

   As a general matter, of course, the Federal Rules of Evidence, and
not state law, govern the admissibility of evidence in diversity actions
in the Federal courts. See Scott v. Sears, Roebuck & Co., 789 F.2d
1052, 1054 (4th Cir. 1986). The Federal Rules of Evidence come with
an implied "prima facie judgment" of the Supreme Court, the Advi-
sory Committee on the Rules of Evidence, and the Congress that "the
rule in question transgresses neither the terms of the Rules Enabling
Act nor constitutional restrictions." Hanna v. Plumer, 380 U.S. 460,
471 (1965) (addressing the Federal Rules of Civil Procedure). Despite
this heavy presumption, however, numerous courts have held that in
an action arising under state law, the Federal Rules of Evidence yield
to specific state provisions which can be characterized as embodying
the substantive policy of a state regarding liability standards under
state law. See, e.g., Hottle v. Beech Aircraft Corp., 47 F.3d 106, 109-
10 (4th Cir. 1995) (holding that a Virginia common-law rule barring
admission of a party’s internal rules and policies in a negligence
action, rather than the Federal Rules of Evidence, governed the
admissibility of a party’s internal manual in a products liability suit);
Gardner v. Chrysler Corp., 89 F.3d 729, 733 (10th Cir. 1996) (hold-
ing that a Kansas statute prohibiting admission of seatbelt evidence
"for the purpose of determining any aspect of comparative negligence
or mitigation of damages" was substantive and governed in federal
court); Barron v. Ford Motor Co., 965 F.2d 195, 199 (7th Cir. 1992)
(stating that to the extent a North Carolina rule excluding evidence of
seat belt nonuse is "designed not to penalize persons who fail to fas-
ten their seatbelts," as opposed to reflecting accuracy and economy
concerns in litigation, it is a substantive rule and governs in federal
court). Thus, despite the general presumption that the Federal Rules
of Evidence govern in federal court, numerous courts have recognized
that a federal court sitting in diversity can be obligated to follow state
provisions that represent substantive state policy judgments as to the
appropriate nature of state-law liabilities.4 This principle reflects the
  4
   If a state rule is substantive, defining the nature of state-law liabilities,
the question in this case would not appear to be whether to apply a state
14                     BROWN v. FORD MOTOR CO.
desire to avoid the rampant forum-shopping and inequitable treatment
of litigants based upon diversity status that would obtain if diversity
litigants in federal court, but not nondiverse litigants in state courts,
could avail themselves of a fundamentally different set of liability
rules. See Hanna, 380 U.S. at 467 (noting the fairness and forum-
shopping difficulties which inhered in the pre-Erie regime). Further,
it is not the goal of diversity jurisdiction to impede the ability of states
to establish, for consistent application in suits grounded on state law,
substantive liability policies reflecting the judgments of the state’s
legislative institutions, regardless of our opinion as to the wisdom of
these policies.

   Thus, under this Circuit’s rule in Hottle, "there are circumstances
where a question of admissibility of evidence is so intertwined with
a state substantive rule that the state rule . . . will be followed in order
to give full effect to the state’s subsantive policy." Hottle, 47 F.3d at
109 (quoting DiAntonio v. Northampton-Accomack Memoral Hosp.,
628 F.2d 287, 291 (4th Cir. 1980)). The Hottle Court reasoned that
"when a state evidentiary rule either embodies or is closely tied to a
state substantive policy . . . application of the federal rule of evidence,
although beyond argument procedural, may encroach upon the state’s
substantive law." Id. at 109-10.

   Here, the district court attempted to walk a delicate line between
forbidden and permitted uses of seatbelt evidence. The district court
concluded that Va. Code Ann. § 46.2-1094(D)’s proscription on use
of evidence of a "violation of this section" as proof of negligence or

evidentiary rule or a "conflicting" Federal Rule of Evidence. Under the
Federal Rules, relevance is defined by reference to the legal characteris-
tics of the claim being litigated. Fed. R. Evid. 401 (defining relevance by
reference to facts "of consequence to the determination of the action").
Thus, if a violation of Virginia’s seatbelt law is substantively not a basis
for liability of any kind in a suit arising from the operation of a motor
vehicle, such evidence would be irrelevant because it is not "of conse-
quence to the determination of [an] action" based solely on Virginia law.
Cf. Hanna v. Plumer, 380 U.S. 460, 470 (1965) (noting that where the
scope of a Federal Rule of Civil Procedure is not construed as suffi-
ciently broad to create a conflict with state law, Erie analysis applies).
                      BROWN v. FORD MOTOR CO.                         15
in mitigation of damages was clearly substantive, but held that evi-
dence of a violation could be considered by the jury on the issues of
(1) negligent vehicle design, (2) whether the truck was reasonably
safe as to Ms. Brown’s breach of warranty claim, and (3) whether Ms.
Brown misused the vehicle relative to her warranty claim.5 If, how-
ever, the "substantive" portion of Virginia’s statute prohibits introduc-
tion of evidence of a violation for the purposes of establishing
comparative negligence or failure to mitigate damages, then Hottle
forbids any uses of such evidence which are "so intertwined" with
Virginia’s substantive policy as to require that the state rule be fol-
lowed to give Virginia’s policy full effect. Hottle, 47 F.3d at 110. The
district court’s permitted uses of the evidence in question are either
in direct contravention of a substantive Virginia policy forbidding the
use of evidence of a "violation" to ground liability in an action arising
from the use of a motor vehicle, or, at a minimum, are sufficiently
"intertwined" with the substantive components of Va. Code Ann.
§ 46.2-1094(D) to require application of the Virginia statute in this
case.

   I thus conclude that § 46.2-1094(D) governs this dispute by its
terms and is applicable in federal court under Hottle. Because the
record before the Court supports a finding of reversible error under
the majority’s alternative interpretation of Va. Code Ann. § 46.2-
1094(D), I respectfully dissent.

  5
    I note that Ms. Brown did not try this case on a crashworthiness the-
ory. Cf. Barron v. Ford Motor Co., 965 F.2d 195 (7th Cir. 1992) (holding
that under a narrower North Carolina rule, which the court interpreted to
forbid admission of evidence of seatbelt nonuse "to establish the plain-
tiff’s failure to exercise due care to minimize the consequences of an
accident," evidence of seatbelt nonuse could be introduced to show the
crashworthiness of a vehicle’s total restraint system in response to a
claim that a vehicle was not crashworthy).
