                              UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                              No. 12-1500


S. L. M., an infant, by and through her mother and next
friend, Amy L. Musick,

                 Plaintiff – Appellant,

           v.

DOREL JUVENILE GROUP, INC.,

                 Defendant – Appellee,

           and

COSCO MANAGEMENT, INC.,

                 Defendant.



Appeal from the United States District Court for the Western
District of Virginia, at Abingdon.   James P. Jones, District
Judge. (1:11-cv-00005-JPJ-PMS)


Argued:   January 29, 2013                  Decided:   March 25, 2013


Before KING, WYNN, and DIAZ, Circuit Judges.


Affirmed by unpublished per curiam opinion.


ARGUED:   James J. O'Keeffe, IV, GENTRY, LOCKE, RAKES & MOORE,
Roanoke, Virginia, for Appellant.       Jonathan Judge, SCHIFF
HARDIN, LLP, Chicago, Illinois, for Appellee. ON BRIEF: Walter
C. Greenough, SCHIFF HARDIN, LLP, Chicago, Illinois; Lynne
Blain, Dannel C. Duddy, HARMAN, CLAYTOR, CORRIGAN & WELLMAN, PC,
Glen Allen, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.




                                2
PER CURIAM:

        In this products liability action, Amy L. Musick, as mother

and   next     friend    of   her   infant        daughter,     S.L.M.,     appeals    the

judgment of the district court in favor of Dorel Juvenile Group,

Inc.,    the    defendant       below.         Dorel,      which    manufactures       and

markets child safety seats, was sued by Musick in the Western

District of Virginia for grievous head injuries S.L.M. sustained

when a young, inattentive driver struck the Musicks’ minivan in

the   rear.       At    the    close    of     the     evidence     and    the    parties’

arguments, the court instructed the jurors on Virginia law, then

produced a special verdict form, directing the jury to consider

sequentially:          (1) whether Dorel’s High Back Booster seat (the

“booster seat”), in which S.L.M was secured at the time of the

accident,       was     defective;       (2)      if    so,     whether     the     defect

proximately caused the girl’s injuries; and (3) in the event

that defect and causation had been adequately proved, the proper

amount and attribution of damages.

      The jury returned its verdict in favor of Dorel, finding at

the threshold that the booster seat was not defective.                              Musick

subsequently      moved       for   a   new       trial,      alleging    that     certain

evidence was improperly admitted, that the jury was led awry by

the district court’s instructions, and that defense misconduct

unfairly tainted the proceedings.                      The court denied Musick’s

motion    and    entered      judgment       for     Dorel.        On    appeal,    Musick

                                              3
pursues more or less the same assignments of error, contending

primarily that the jury was unduly influenced by the court’s

decision to allow Dorel to admit into evidence that it designed

and   constructed      the   booster    seat       in    compliance       with     Federal

Motor   Vehicle     Safety    Standard       213    (“FMVSS         213”),    49    C.F.R.

§ 571.213, which establishes child safety seat standards based

on testing conducted for frontal impacts, but not on testing for

rear-impact     collisions     like    the    one       that    injured      S.L.M.       In

accordance     with    our    explanation          below,      we    reject      Musick’s

challenges to the jury’s verdict and affirm.



                                        I.

      As prescribed by the federal rules, “[e]vidence is relevant

if . . . it has any tendency to make a fact more or less

probable than it would be without the evidence[,] and . . . the

fact is of consequence in determining the action.”                                 Fed. R.

Evid. 401.      Relevant evidence may nonetheless be excluded “if

its   probative     value    is   substantially           outweighed       by”     any   of

several dangers, including unfair prejudice and confusion of the

issues.    See Fed. R. Evid. 403.

      The district court here was imbued with “broad discretion

in    ruling   on   questions     of   relevancy          and       in   balancing       the

probative      value    of    relevant       evidence          against       any      undue

prejudice.”     United States v. Zandi, 769 F.2d 229, 237 (4th Cir.

                                         4
1985)    (citing       Hamling      v.     United     States,     418   U.S.     87,    124-25

(1974)).          We review the court’s evidentiary rulings merely to

ensure that it did not abuse its considerable discretion.                                  See

Belk, Inc. v. Meyer Corp., U.S., 679 F.3d 146, 161 (4th Cir.

2012).



                                                II.

       We begin with black-letter law, namely, that “a product’s

compliance          with     an     applicable        product      safety        statute    or

administrative regulation is properly considered in determining

whether      the     product      is     defective       with    respect    to    the    risks

sought to be reduced by the statute or regulation.”                              Restatement

(Third) of Torts:                 Prod. Liab. § 4(b) (1998); see Talley v.

Danek       Med.,    Inc.,    7     F.    Supp.     2d   725,     731   (E.D.     Va.    1998)

(observing that, in evaluating design defect, “‘a court should

consider whether the product fails to satisfy . . . applicable

government standards’” (quoting Redman v. John D. Brush & Co.,

111     F.3d      1174,      1177        (4th   Cir.      1997)     (internal       citation

omitted))).          Were we to accept Musick’s position that FMVSS 213

is    not    an     “applicable”         administrative         promulgation      (and     thus

irrelevant to Dorel’s defense), we would also be constrained to

accept that the “risks sought to be reduced” by the regulation

necessarily excluded the specific risk of injury through a rear-

end collision.             In light of such exclusion, it would logically

                                                5
follow that FMVSS 213 could not have been intended to reduce the

risks presented by motor vehicle collisions as a whole.

        We cannot so construe the regulation, which provides on its

face, plainly and simply, that its purpose is “to reduce the

number of children killed or injured in motor vehicles,” without

regard to how those children may come to be endangered.                                       49

C.F.R. § 571.213 S2 (2012).                    At trial, the regulation’s supposed

lack of attention to rear-impact testing was readily explained

by   Dorel’s      expert,            William    Van   Arsdell.         Dr.     Van   Arsdell

testified that the government had once considered implementing

standards      based        on       rear-impact      testing,     but     deemed      action

unnecessary because the “child seats on the market would have

passed    those    .    .        .    standards.”       J.A.     1467. 1       Under       these

circumstances,         we    could       hardly       attribute       to   FMVSS     213    the

abbreviated reach that Musick urges.

     Moreover, though Musick’s claim proceeded on a theory of

strict liability and not negligence, the care with which Dorel

designed the booster seat was yet placed in issue.                              See Turner

v. Manning, Maxwell & Moore, Inc., 217 S.E.2d 863, 868 (Va.

1975)    (instructing            that    a     “manufacturer     is    under    a    duty     to

exercise ordinary care to design a product that is reasonably


     1
       Citations herein to “J.A. ___” refer to the contents of
the Joint Appendix filed by the parties to this appeal.



                                                 6
safe    for    the    purpose     for     which     it    is     intended      (citation

omitted)).           Indeed,     the    jury   was       instructed       in   absolute

conformity with Turner.                See J.A. 1657.           Evidence of Dorel’s

compliance with FMVSS 213 was therefore relevant and necessary

to demonstrate the company’s care in bringing the booster seat

to market.

       Although the evidence in question was helpful to Dorel, and

thus, by corollary, prejudicial to the plaintiff’s case, that

prejudice did not rise to the level of unfairness contemplated

by Rule 403.          Indeed, it arguably would have been unfair to

Dorel for the district court to have excluded the challenged

evidence on relevancy grounds, particularly given the nature of

Musick’s proof of defect.               That proof consisted of expert and

anecdotal testimony intended to show that the booster seat was

defective because Dorel could have designed it with larger side

wings and energy absorbing padding, at a minimum of additional

cost.     See, e.g., J.A. 996-97.

       There   was    no   evidence,      however,       to    the   effect    that   the

hypothetical design changes would have made the seat safer only

in the event of a rear-impact collision.                       Rather, the testimony

established that the proffered changes would have made the seat

more    safe    generally.         See,     e.g.,     J.A.       699   (testimony      of

plaintiff’s     expert      on    biomechanics,          Dr.     Stefan    Duma,      that

padding “[a]bsolutely would have effectively eliminated any risk

                                           7
of    skull     fracture,”     without   qualification        as   to   type    of

collision); id. at 996 (testimony of mechanical engineer Gary

Whitman,      appearing   on    behalf   of    plaintiff,   that   “large      side

wings and energy absorbing padding was necessary to provide good

protection to children,” without minimizing protective benefits

afforded in front- or side-impact collisions). 2

      Because Musick’s evidence attacked only the general design

of the booster seat, it would have been inequitable to have

excluded Dorel’s competing evidence in kind.                We recognize that

our conclusion today may be in some tension with those reached

by two state courts that have considered the similar issue.                    See

Malcolm v. Evenflo Co., Inc., 217 P.3d 514, 522-23 (Mont. 2009);

Uxa ex rel. Uxa v. Marconi, 128 S.W.3d 121, 130-31 (Mo. Ct. App.

2003).     We respectfully disagree with the outcomes reached in

these cases, and emphasize that the court’s decision in Malcolm

was based in part on Montana’s rejection of that portion of the

Restatement on which we have relied as accurately stating the

law   of      Virginia.        The   summary    ruling   in    Marconi,     under

      2
       The skull fracture alluded to by Dr. Duma was devastating,
permanently disabling S.L.M. such that her lifetime cost of care
is, according to the trial evidence, likely to approach $10
million.   See J.A. 874-75.   The circumstances of this case are
truly tragic, as the district court acknowledged.     See id. at
1873.    We do not envy the task undertaken by the jury here,
which must have been extraordinarily difficult; that is all the
more reason, however, for us to respect the verdict it
ultimately reached.



                                         8
circumstances less distinguishable from the case at bar, suffers

from a brevity of analysis and does not persuade us. 3

       Based       on    the    above    considerations,          we    are    unwilling    to

conclude          that    the   district        court     abused       its    discretion    in

admitting evidence of Dorel’s compliance with FMVSS 213.                                    We

have       also     examined     the     jury     instructions          relating   to   that

regulation,         and    we   can     discern      no   abuse    of    discretion;       each

instruction accurately states Virginia law and was warranted by

the trial evidence. 4



                                            III.

       With respect to the remaining assignments of error, we are

content to affirm the judgment below on the grounds set forth by


       3
       Musick also maintains that the district court abused its
discretion by admitting into evidence what was represented to be
a “preamble” to the regulation.     Although there is now some
substantial question as to whether the exhibit is what it was
represented to be, there was no objection made at trial, and its
admission was not plain error.
       4
       We single out for comment the district court’s instruction
relating to FMVSS 213.    The court instructed the jury that, as
to the question of defect, it “may consider, among other things,
any pertinent safety standards issued by the government.     Such
evidence may assist you in determining whether or not the car
seat in question was defective, but does not require that you
find one way or the other as to that issue.”           J.A. 1660
(emphasis added). We are satisfied that the court’s instruction
adequately informed the jury that, contrary to Musick’s
contention, Dorel’s compliance with the regulation was not
dispositive of the case as a whole.



                                                 9
the district court in its thorough and well-reasoned memorandum

Opinion and Order denying Musick’s motion for a new trial.   See

Musick v. Dorel Juvenile Group, Inc., 847 F. Supp. 2d 887 (W.D.

Va. 2012).

                                                       AFFIRMED




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