                                                                NOT PRECEDENTIAL

                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT
                               _____________

                                    No. 08-4322
                                   _____________

                                RYAN JACOBSON,
               a minor and by Robert Jacobson and Beverly Jacobson
               as the parents and natural guardians of Ryan Jacobson,
                                                           Appellant

                                          v.

             BMW OF NORTH AMERICA, LLC, a corporation;
         BAYERISCHE MOTOREN WERKE AKTIENGESOLLSCHAFT,
                          a corporation


                    Appeal from the United States District Court
                      for the Western District of Pennsylvania
                            (D.C. Civil No. 02-cv-00181)
                    District Judge: Honorable Joy Flowers Conti


                     Submitted Under Third Circuit LAR 34.1(a)
                                 March 23, 2010

           Before: RENDELL, FUENTES and JORDAN, Circuit Judges.

                               (Filed: April 15, 2010)


                            OPINION OF THE COURT


RENDELL, Circuit Judge.

     Plaintiff Ryan Jacobson appeals from the District Court’s denial of his motion for
a new trial following a jury verdict in favor of defendants Bayerische Motoren Werke

Aktiengesellschaft (“BMW-AG”) and BMW of North America, LLC (“BMW NA”)

(collectively, “BMW”) in a products liability lawsuit arising out of an accident involving

a 1987 BMW 325i, a two-door automatic transmission sport coupe, driven by Robert

Jacobson, Ryan’s father. On appeal, Jacobson argues that the District Court abused its

discretion in denying Jacobson’s motion for a new trial, which challenged the Court’s

prior evidentiary rulings and its jury instructions. Because we conclude that the District

Court did not abuse its discretion, we will affirm the Order and Judgment of the District

Court.

I.       Background

         The following facts come from the trial transcript, and, except where otherwise

indicated, are undisputed. The vehicle was manufactured by BMW-AG and sold in the

United States by BMW NA. BMW-AG is a German corporation, which, among other

things, manufactures and distributes motor vehicles worldwide. BMW NA, a Delaware

Limited Liability Company registered to do business in Pennsylvania, is a wholly owned

subsidiary of BMW-AG, and distributes, sells, markets, and services motor vehicles in

North America that were manufactured by BMW-AG.

         On May 4, 1999, Robert Jacobson drove the BMW 325i to do errands with his two

sons, Ryan and Christopher. Ryan, age 12, was seated in the front passenger seat, and

Christopher, age 9, was seated in the rear passenger seat. Robert Jacobson stopped at



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Sam’s Bar, in Dormont, Pennsylvania, to buy a six-pack of beer for a family cookout, and

parked the car in the bar’s parking lot. He claims that, when he parked the car, he placed

the shift lever into the “Park” position, turned the engine off, set the parking brake, and

removed the keys from the ignition, before exiting the vehicle and entering the bar.1 Ryan

and Christopher remained in the car while their father entered the bar.

       The parking lot of the bar is on a slope. While his father was inside the store,

Ryan began playing with the gear shift lever, which was located between the front seats.

While playing, Ryan disengaged the gear shift lever from the “Park” position, shifting it

into either “Reverse” or “Neutral,” and the car began to drift backwards down the slope.

Ryan tried to move the gear shift back into the “Park” position, but was unable to do so.

       Ryan and Christopher became scared, and Christopher climbed into the front seat

and exited through the driver’s side window unhurt. Ryan exited through the passenger

side window, but fell to the ground and was struck by the right front part of the car. He

sustained multiple fractures, contusions, and lacerations, as well as injuries to his brain

and left eye. His injuries required several surgeries, including arthroscopic surgery on his

left knee, repairs to his left eye, brain surgery, and plastic surgery. He has also needed

extensive physical therapy, and further surgeries are likely to be necessary. As a result of




       1
         BMW disputed Robert Jacobson’s claims that he engaged the parking brake and
that he removed the keys from the ignition when exiting the car. It also adduced evidence
from Christopher that Ryan disengaged a safety mechanism and thereby overrode the
car’s safety features. However, this factual dispute is not relevant to the issues on appeal.

                                              3
these injuries, his face and skull have been permanently disfigured.

       Robert Jacobson filed suit on behalf of his minor son Ryan against BMW in the

Western District of Pennsylvania, alleging that BMW was strictly liable for Ryan’s

injuries because the design of the car was defective. He asserted that BMW should have

equipped the vehicle with either a Brake Shift Interlock (“BSI”), a device which would

have prevented the car from shifting out of “Park” unless the brake pedal was depressed,

or a Park Lock System (“PLS”), a device which would have prevented the gear shift from

moving out of “Park” unless the key was in the ignition and had been turned out of the

“Lock” position (collectively “Lock Systems”). BMW contended that the accident could

not have happened in the way Jacobson urged, and that the car was safe as designed.

       The case went to trial, and a jury returned a verdict in favor of BMW. Jacobson

filed a timely motion for a new trial, which was denied by the District Court. Jacobson

then filed this appeal, contending that the District Court erred in denying his motion for a

new trial. In particular, Jacobson argues that four errors warranted a new trial. First, he

claims that the District Court erred in granting a motion in limine by BMW to exclude

evidence of other vehicles that used the Lock Systems, and of product recalls by Nissan

and Jeep to retrofit their cars with Lock Systems. Second, he argues that the District

Court erroneously barred him from presenting evidence of the “feasibility” of the design

changes. Third, Jacobson claims that the District Court gave an erroneous jury instruction

on the definition of “design defect.” Finally, he argues that the District Court erred in



                                              4
admitting evidence of Jacobson’s contributory negligence.

II.    Jurisdiction and Standard of Review

       The District Court had jurisdiction over this case pursuant to 28 U.S.C. § 1332,

and we have jurisdiction pursuant to 28 U.S.C. § 1291.

       We review a district court’s ruling on a motion for a new trial for abuse of

discretion, recognizing that the decision to grant or deny a new trial is normally within the

discretion of the district court. Blancha v. Raymark Indus., 972 F.2d 507, 512 (3d Cir.

1992); McKenna v. City of Philadelphia, 582 F.3d 447, 460 (3d Cir. 2009). A court’s

latitude in ruling on the motion is especially broad when the grounds asserted in the

motion concern matters that initially rested within the discretion of the district court.

Klein v. Hollings, 992 F.2d 1285, 1289-90 (3d Cir. 1993). Rulings on evidentiary matters

and the content of instructions to the jury are two such discretionary matters. See

McKenna, 582 F.3d at 460 (evidentiary rulings); Donlin v. Philips Lighting N. Am. Corp.,

581 F.3d 73, 78 (3d Cir. 2009) (jury instructions).

III.   Discussion

A.     Evidence of Feasibility

       Prior to trial, BMW filed a motion in limine seeking to exclude evidence of other

car manufacturer recalls (by Nissan in 1987 and Jeep in 1994) in order to retrofit their

vehicles with Lock Systems. While Jacobson had adduced this evidence to show that it

would have been feasible for BMW to have included a Lock System in its vehicles at the



                                              5
time the 325i was manufactured, BMW asserted that it would not contest feasibility at

trial. The parties agreed to a stipulation that the Lock Systems were “technologically and

economically feasible” at the relevant time, and the District Court therefore excluded the

evidence of other recalls.

       Jacobson argues that this was an abuse of discretion. To demonstrate that the

Court abused its discretion, Jacobson must show that the evidentiary ruling was

“arbitrary, fanciful or clearly unreasonable.” Acumed LLC v. Advanced Surgical Servs.,

Inc., 561 F.3d 199, 211 (3d Cir. 2009) (internal quotation marks and citations omitted).

Jacobson cannot do so. Notwithstanding the fact that this evidence may have been

admissible under Federal Rule of Evidence 407, which allows for evidence of subsequent

remedial measures to be admitted in certain instances, it was not necessary to admit this

evidence here, since BMW had stipulated to feasibility. It was also not unreasonable to

exclude it. Although Jacobson now argues that this evidence would also have shown that

the BMW was unsafe without a Lock System, he did not advance this argument in the

District Court, and we will not consider it for the first time on appeal.

       Jacobson also challenges the exclusion of this recall evidence based on certain

responses of BMW’s expert witness, Wolfe Busch, in which he stated that the Lock

Systems were “feasible, but not yet invented.” Jacobson argues that this “opened the

door” to the recall evidence to demonstrate the feasibility and availability of the Lock

Systems. However, the District Court and the parties addressed this objection by adding



                                              6
to the previous stipulation language stating that these systems were “available.” The

District Court then properly instructed the jury to disregard Busch’s prior testimony to the

extent it contradicted the stipulation, Busch agreed with the amended stipulation, and

Jacobson did not lodge an objection to this procedure. We find no abuse of discretion in

the District Court’s handling of this aspect of the trial.

B.     Jury Instruction Concerning the Definition of “Design Defect”

       Jacobson also finds fault with the District Court’s instruction regarding the

definition of a “design defect.” As part of this instruction, the Court stated that “[t]he

designer or distributor of a product is a guarantor of its safety. The product must be

provided with every element necessary to make it safe for its intended use by an intended

user and without any condition that makes it unsafe for its intended use by an intended

user.” App. 243-44 (emphasis added). Jacobson contends that the District Court erred

by inserting the word “intended” before the word “use” and by not further instructing the

jury concerning the meaning of “intended.”

       However, Jacobson did not object to the phrasing of this language at trial.2

Instead, he specifically accepted several proposed jury instructions that incorporated the




       2
         The contentious issue between the parties at trial with regard to this instruction
was the phrase “intended user,” rather than “intended use.” See App. 189-94. During the
final charge conference, after the Court had gone over the instruction containing
“intended use,” App. 191, Jacobson’s lawyer stated that, “on behalf of Plaintiff, I have
reviewed your entire document and I have no objections to anything other than the
‘and/or,’ and the language in the verdict slip,” App. 201.

                                               7
concept of an “intended use.” 3 A party who has not clearly and specifically objected to a

jury instruction is deemed to have waived that challenge. Alexander v. Riga, 208 F.3d

419, 426 (3d Cir. 2000). If a party does not object, we review the instruction for plain

error, and will reverse “only if the trial court committed error that was fundamental and

highly prejudicial.” Id.

       There was no plain error. Under Pennsylvania law, which the parties agree applies

here, “a manufacturer can be deemed liable only for harm that occurs in connection with a

product’s intended use by an intended user.” Pa. Dep’t of Gen. Servs. v. U.S. Mineral

Prods. Co., 898 A.2d 590, 600 (Pa. 2006).4 Thus, it was appropriate for the Court to refer

       3
         Jacobson agreed to Defendants’ Requested Jury Charge No. 15, which stated:
“To decide if the Model 325 in question was defective, you must first decide if the Model
325 was defective in its normal and intended use.” Supp. App. 169 (emphasis in
original). He further agreed to Defendants’ Requested Jury Charge No. 17, which stated:
“A manufacturer is entitled to assume that its products will not be subjected to abnormal,
unintended uses. No liability follows from damages resulting from such abnormal,
unintended uses.” Supp. App. 171. Finally, Jacobson’s own proposed instruction,
Plaintiff’s Requested Jury Charge No. 1, directly incorporated the concept of an “intended
use” into the definition of “design defect” by stating:
       The product must be provided with every element necessary to make it safe for its
       intended and foreseeable use, and without any condition that makes it unsafe for its
       intended and foreseeable use. If you find that the product, at the time it left the
       defendant’s control, lacked any element necessary to make it safe for its intended
       and foreseeable use, or contained any condition that made it unsafe for its intended
       and foreseeable use, and there was an alternative, safer practicable design, then the
       product was defective and the defendant is liable for all harm caused by the defect.
Supp. App. 202.
       4
         Although the Pennsylvania Supreme Court’s decision in Department of General
Services was issued after Jacobson was injured and after he filed this lawsuit, federal
courts must apply state law “in accordance with the then controlling decision of the
highest state court.” Vandenbark v. Owens-Illinois Glass Co., 311 U.S. 538, 543 (1941).

                                             8
to the product’s “intended use” in the jury instructions. The principal case relied upon by

Jacobson, Mount Olivet Tabernacle Church v. Edwin L. Wiegand Division, 781 A.2d

1263 (Pa. Super. Ct. 2001), is not applicable to these facts. In that case, the court merely

held that the word “intended” is “not always necessary for a proper instruction.” Id. at

1268. It did not preclude courts from ever referring to the intended use.

       Jacobson did object to the Court’s decision not to include a definition of “intended

use” that encompassed any use “reasonably foreseeable” to the seller. When a party has

properly objected to a jury instruction, we review for abuse of discretion, and we must

determine “whether, taken as a whole, the instruction properly apprised the jury of the

issues and the applicable law.” Donlin, 581 F.3d at 78 (citing Dressler v. Busch Entm’t

Corp., 143 F.3d 778, 780 (3d Cir. 1998)). Even a mistake in a jury instruction will not

constitute reversible error if the instruction “‘fairly and adequately’ presents the issues in

the case without confusing or misleading the jury.” United States v. Ellis, 156 F.3d 493,

498 n.7 (3d Cir. 1998). Jacobson cites to Pacheco v. The Coats Co., 26 F.3d 418, 422 (3d

Cir. 1994), and Sheldon v. West Bend Equipment Corp., 718 F.2d 603, 608 (3d Cir. 1983),

as establishing that under Pennsylvania law the “intended use” of a product includes all

uses “reasonably foreseeable” by the manufacturer. However, the reasoning of these




This requires the application of current state law, as determined by the state supreme
court, even if it were to be changed while the federal action is pending. Id.; Air Prods. &
Chems., Inc. v. Hartford Accident & Indem. Co., 25 F.3d 177, 181 (3d Cir. 1994); Baker
v. Outboard Marine Corp., 595 F.2d 176, 182 (3d Cir. 1979).

                                               9
cases was explicitly rejected by the Pennsylvania Supreme Court. Pa. Dep’t of Gen.

Servs., 898 A.2d at 603-04. We ordinarily are bound by the published decisions of prior

panels of this court unless the holding is undermined by a subsequent Supreme Court case

or overruled by this court sitting en banc. Nationwide Ins. Co. v. Patterson, 953 F.2d 44,

46 (3d Cir. 1991). However, when applying state law, we are free to reexamine the

validity of our prior state law interpretations in light of subsequent decisions of the state

supreme court. Id. Here, the Pennsylvania Supreme Court decision in Department of

General Services was issued after our opinions in Pacheco and Sheldon, and specifically

rejects their rationale. 898 A.2d at 603-04.

       As noted above, the Pennsylvania Supreme Court in Department of General

Services stated that “a manufacturer can be deemed liable only for harm that occurs in

connection with a product’s intended use by an intended user.” Id. at 600. The court in

that case rejected the trial court’s jury instruction authorizing consideration of

“foreseeability,” holding that, with limited exceptions, the “foreseeable misuse of a

product will not support a strict liability claim.” Id. at 601. Therefore, the District

Court’s decision to omit “foreseeability” from its jury instruction on the definition of

“design defect” properly apprised the jury of the applicable law, and the District Court did

not abuse its discretion in denying Jacobson’s motion for a new trial on this ground.

C.     Admission of Evidence of Plaintiff’s Contributory Negligence

       While Jacobson’s brief mentions contributory negligence in the statement of facts,



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it does not refer to it again. BMW correctly notes that “an argument consisting of no

more than a conclusory assertion . . . will be deemed waived.” Reynolds v. Wagner, 128

F.3d 166, 178 (3d Cir. 1997). As we have previously stated, “appellate courts generally

should not address legal issues that the parties have not developed through proper

briefing.” S.W. Pa. Growth Alliance v. Browner, 121 F.3d 106, 122 (3d Cir. 1997).

Jacobson has therefore waived this argument and we need not consider its merits.

IV.    Conclusion

       For the reasons set forth above, we will AFFIRM the Order and Judgment of the

District Court.




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