     Case: 10-50678     Document: 00511514265          Page: 1    Date Filed: 06/20/2011




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

                                                 FILED
                                                                            June 20, 2011

                                       No. 10-50678                         Lyle W. Cayce
                                                                                 Clerk

JOANNA MCGLOTHIN NAVARRO, Individually and on behalf of The Estate
of Ricardo Navarro, deceased; CHRIS NAVARRO, and All Beneficiaries
Entitled to Recover Under the Texas Wrongful Death Act for the Death of
Ricardo Navarro, Deceased; ALAN NAVARRO, and All Beneficiaries Entitled
to Recover Under the Texas Wrongful Death Act for the Death of Ricardo
Navarro, Deceased,

                                                   Plaintiffs - Appellants
v.

SOARING HELMET CORP.,

                                                   Defendant - Appellee




                    Appeal from the United States District Court
                         for the Western District of Texas
                              USDC No. 1:06-CV-1004


Before REAVLEY, GARZA, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
        The Estate and the wrongful death beneficiaries of Ricardo Navarro
brought a design defect suit against Soaring Helmet Corporation. The defendant
was the distributor of a helmet that Navarro was wearing when he fell off his



        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 10-50678

motorcycle and died. A jury returned a defense verdict. The argument on
appeal is that the district judge erroneously excluded expert testimony and
evidence of alternative helmet designs. We AFFIRM.
                    FACTUAL AND PROCEDURAL HISTORY
      On May 30, 2005, Ricardo Navarro was riding a motorcycle near
Fredericksburg, Texas. He lost control, fell, and tumbled on the pavement. He
suffered injuries to his head and chest, and he died at the scene. At the time of
the accident, Navarro was wearing the Vega Summit XPV full-face helmet
distributed by Soaring Helmet Corp.
      In December 2006, the Navarro family filed suit against Soaring Helmet
in the United States District Court for the Western District of Texas, alleging
various products liability claims, including design defect, manufacturing defect,
and marketing defect, as well as negligence and gross negligence claims. The
family argued that Navarro suffered a fatal basilar skull fracture because of the
improper design of the Vega Summit XPV helmet. That is, the helmet appeared
to offer full-face protection because it had a full-face outer shell, but actually
provided only a half-shell inner liner. The defendant claimed that Navarro’s
death was not caused by any possible defects in the helmet but was the result
of an injury to his chest.
      In 2008, the district court granted summary judgment in favor of Soaring
Helmet based on a finding that there was no evidence that Navarro’s death was
the result of a head injury. We reversed and remanded after determining that
there was “evidence cumulatively sufficient to support a finding that Navarro
died from a head injury and not a chest injury.” Navarro v. Soaring Helmet
Corp., 321 F. App’x 340, 341 (5th Cir. 2009) (unpublished).
      At trial after our remand, Navarro’s family wanted to introduce “evidence
of other full-face motorcycle helmets that, unlike [the Vega Summit XPV],
contained energy-absorbing polystyrene inner liners that protected not just the

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                                  No. 10-50678

top of the head, but extended down the sides of the helmet and into the chin
bar.” Prior to trial, Soaring Helmet filed a motion in limine seeking to prevent
the admission of this evidence. Counsel for the Navarro family argued that the
evidence was relevant to feasibility and unreasonable dangerousness.          The
district judge expressed concern that if the plaintiff presented evidence on other
helmets to show that the Vega Summit XPV was unusually light on padding,
and the defendant countered with evidence of yet more helmets that were
similar to the one Navarro had worn, the trial would be consumed by an issue
the district judge found to be irrelevant. “What’s relevant is the design and the
only relevance [of] any other helmet is to show that it was feasible” to make a
helmet with more protection. “So if you think you’ve got something as you
proceed, approach the bench, counsel, but not as an outlier.”
      On the morning of the third day of trial, the admissibility of evidence of
other helmets was addressed one last time. The district judge stated that “if we
have 150 motorcycle helmets brought in with all sorts of different designs, . . .
it really doesn’t make any difference. . . . The relevancy is, was this helmet
unreasonably dangerous?” The defendant’s attorney stated that the plaintiff’s
expert had not tested any of the other helmets he wanted to mention, though he
did test the Vega Summit XPV. The plaintiff’s attorney wanted the expert to be
allowed to testify that helmets with the claimed better design were available,
and were economically and technologically feasible. The expert, Dr. Richard
Stalnaker, was then subjected to voir dire. He indicated that he wanted to
mention one other helmet – the Laser. It was similar in price to the Vega
Summit XPV, and contained the padding that the expert would state was the
better design.
      After the voir dire, the district judge ruled that while evidence of other
helmets was not relevant to the question of unreasonable dangerousness, he
would permit the expert witness for Navarro’s family to “testify that he found a

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helmet that had the difference” in the levels of protection. The district judge also
said he expected the expert would be cross-examined and would admit that there
were other available helmets that did not have the extra padding.
      At the close of trial, the jury was presented with a verdict form containing
an initial question on liability. It asked:
      Was there a design defect in the Vega Summit XPV helmet at the
      time it left the possession of Soaring Helmet that was a producing
      cause of Richard Navarro’s death?
The instructions defined “design defect” as
      a condition of the product that renders it unreasonably dangerous
      as designed, taking into consideration the utility of the product and
      the risk involved in its use. For a design defect to exist there must
      have been a “safer alternative design.”
      The jury answered the initial question, “No,” resulting in a defense verdict.
The district judge denied a motion for new trial. A timely appeal followed.
                                   DISCUSSION
      The Navarro family seek reversal based on the district judge’s exclusion
of the following evidence: (1) alternative helmets were available, and (2) expert
opinion that the helmet was deceptive and an outlier.
      We review evidentiary decisions for an abuse of discretion. Hodges v.
Mack Trucks, Inc., 474 F.3d 188, 198-99 (5th Cir. 2006). “A trial court abuses its
discretion if . . . it bases its decision on an error of law.” Id. at 198-99 (quotation
marks and citation omitted). Upon finding an abuse of discretion, this court
reviews for harmless error, upsetting the verdict only where the error affected
the substantial rights of the complaining party. Id. at 199; Fed. R. Civ. P. 61.
I. Exclusion of evidence of alternative helmet designs
      Navarro’s family argues the district judge abused his discretion when he
excluded evidence of alternative helmet designs, because such evidence was
relevant to the reasonableness of the design of the Vega Summit XPV.



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      Products liability claims in Texas are governed by Chapter 82 of the Texas
Civil Practice and Remedies Code. See Tex. Civ. Prac. & Rem.Code §§ 82.001-
008. The section applying to design defects establishes these requirements:
      (a) In a products liability action in which a claimant alleges a design
      defect, the burden is on the claimant to prove by a preponderance of
      the evidence that:
             (1) there was a safer alternative design; and
             (2) the defect was a producing cause of the personal injury,
             property damage, or death for which the claimant seeks
             recovery.

      (b) In this section, “safer alternative design” means a product design
      other than the one actually used that in reasonable probability:
              (1) would have prevented or significantly reduced the risk of
              the claimant’s personal injury, property damage, or death
              without substantially impairing the product’s utility; and
              (2) was economically and technologically feasible at the time
              the product left the control of the manufacturer or seller by
              the application of existing or reasonably achievable scientific
              knowledge.
Id. § 82.005(a)-(b).
      Beyond presenting evidence on these two elements, a plaintiff must also
offer evidence that “the product was defectively designed so as to render it
unreasonably dangerous.” Timpte Indus., Inc. v. Gish, 286 S.W.3d 306, 311 (Tex.
2009). Texas courts consider the defective design issue using a “risk-utility
analysis” that involves consideration of multiple factors, including “the
availability of a substitute product which would meet the same need and not be
unsafe or unreasonably expensive . . . .” Id.1

      1
        The entire list of risk-utility factors is this:
      (1) the utility of the product to the user and to the public as a whole weighed
      against the gravity and likelihood of injury from its use; (2) the availability of
      a substitute product which would meet the same need and not be unsafe or
      unreasonably expensive; (3) the manufacturer’s ability to eliminate the unsafe
      character of the product without seriously impairing its usefulness or
      significantly increasing its costs; (4) the user’s anticipated awareness of the
      dangers inherent in the product and their avoidability because of general public

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       In this case, the district judge conditionally excluded evidence of
alternative helmet designs because the evidence would not “have anything to do
with whether [the Vega Summit XPV] is unreasonably dangerous.” The district
judge, however, eventually concluded that the expert witness for Navarro’s
family, Dr. Stalnaker, could “testify that he found a helmet that had the
difference” in the levels of protection. During the voir dire, the expert testified
that the Laser helmet was comparable in price. His voir dire testimony also
implied that the alternative was not unreasonably dangerous.
       Consequently, the district judge’s ruling, though not premised upon
permitting      the    introduction      of   evidence     to    establish    unreasonable
dangerousness, allowed the expert to present the testimony that would have
shown the availability of the alternative design that he opined was better.
       The district judge also ruled that related evidence could not be offered,
such as photographs of other helmets. Controlling how much evidence is offered
on relevant factual issues is a matter within the district court’s discretion; the
district court is entitled to determine that certain evidence is cumulative or its
introduction would cause undue delay. Fed. R. Evid. 403. The district judge was
concerned that if the trial started down the road of evidentiary presentations on
the large number of other available helmets that were similar or dissimilar to
the Vega Summit XPV, the jurors would receive much confusing evidence. That
ruling was not an abuse of discretion.
       We conclude the district judge did not improperly restrict the Navarro
family’s efforts to establish that an alternative design existed that was not
unreasonably dangerous, would have provided the protection the expert testified
Navarro needed, and was comparable in price.



      knowledge of the obvious condition of the product, or of the existence of suitable
      warnings or instructions; and (5) the expectations of the ordinary consumer.
Timpte, 286 S.W.3d at 311 (citation omitted).

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II. Exclusion of expert testimony
      A different factual issue at trial was whether the Vega Summit XPV was
“deceptive,” “misleading,” and an “outlier.” The Navarro family argues that the
district judge abused his discretion when he would not allow Dr. Stalnaker to
testify that consumers would find the helmet to be deceptive.
      The party seeking to introduce expert testimony has the burden to “prove
by a preponderance of the evidence that the testimony is reliable.” Rodriguez v.
Riddell Sports, Inc., 242 F.3d 567, 581 (5th Cir. 2001) (quotation marks and
citation omitted). An expert witness may provide opinion testimony if “(1) the
testimony is based upon sufficient facts or data, (2) the testimony is the product
of reliable principles and methods, and (3) the witness has applied the principles
and methods reliably to the facts of the case.” Fed. R. Evid. 702.
      Dr. Stalnaker was subject to voir dire immediately prior to testifying
before the jury. Almost the entirety of the voir dire dealt with his opinion that
an additional liner in the helmet would have saved Navarro’s life. Very little
attention was given to the expert’s opinion as to whether the helmet was
deceptive in appearance. Only two questions were asked on this point. Dr.
Stalnaker stated he had not conducted any surveys to determine whether
consumers would find the Vega Summit XPV to be misleading in the degree of
protection that it provided. Instead, his opinion arose simply from the fact that
because the helmet covered the entire head, consumers would believe it provided
protection for the entire head. The district judge ruled that Dr. Stalnaker could
not testify that consumers would be deceived by the helmet’s appearance.
      The expectation of ordinary consumers is a relevant factor in the risk-
utility analysis. See Timpte, 286 S.W.3d at 311. In the presentation of this
argument in its appellate brief, the Navarro family cites one of our precedents
as its sole authority. See Carter v. Massey-Ferguson, Inc., 716 F.2d 344, 348 (5th
Cir. 1983). Carter determined that evidence of industry custom was relevant to

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proving an ordinary consumer’s expectations as to a product. Id. Our issue is
different, namely, whether this expert had any basis on which to support his
opinion. We agree with the district judge that in what little time was spent
during voir dire on whether the helmet was misleading to consumers, no
adequate basis was offered that Dr. Stalnaker had the expertise to provide a
better opinion about what consumers would expect than would jurors
themselves.
     AFFIRMED.




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