                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 11-2505
                                    ___________

Kayla Nemmers,                       *
                                     *
           Plaintiff-Appellant,      *
                                     * Appeal from the United States
     v.                              * District Court for the
                                     * Southern District of Iowa.
Ford Motor Company,                  *
                                     *
           Defendant-Appellee.       *
                                ___________

                              Submitted: February 15, 2012
                                 Filed: July 10, 2012
                                  ___________

Before GRUENDER, BENTON, and SHEPHERD, Circuit Judges.
                          ___________

SHEPHERD, Circuit Judge.

        Plaintiff Kayla Nemmers filed a products liability action against Defendant
Ford Motor Company, alleging that a lap-only seatbelt installed in the front-center
seat of a 2002 Ford F-250 pickup failed to restrain her torso during an accident. After
trial, the jury returned a verdict in favor of Ford. Nemmers appeals, arguing the
district court1 committed reversible error in its evidentiary rulings, by refusing to



      1
       The Honorable Charles R. Wolle, United States District Judge for the Southern
District of Iowa.
dismiss certain jurors for cause, and by failing to admonish defense counsel for
remarks made during closing argument. We affirm.

                                    I. Background

       On the night of February 3, 2007, Nemmers was riding in the front-center seat
of a 2002 Ford F-250 pickup, which was equipped only with a lap belt. Bradley
Chrest was driving the truck and his brother, Raymond Chrest, was in the passenger
seat to the right of Nemmers. While traveling down a snow-covered country dirt road
in Iowa, the truck slid across the roadway into an adjacent ditch, collided with a tree
stump, rotated clockwise, rolled over, and came to rest on its roof. When emergency
responders arrived on the scene, Nemmers was found on the ground outside the
vehicle. As a result of the accident, Nemmers suffered a spinal cord injury leading
to permanent paralysis.

       Nemmers filed a diversity civil action against Ford, on behalf of herself and her
minor son, based on her allegation that the lap belt failed to restrain her torso during
the accident. Nemmers’s amended complaint included claims based on strict liability,
negligence and failure to warn and instruct, and breach of warranties. After trial, the
jury found Ford was not at fault and rendered a verdict in Ford’s favor. The trial
court entered judgment in favor of Ford and denied Nemmers’s motion for a new trial.
Nemmers appeals a number of the rulings made by the district court, and she seeks
a new trial.

                                     II. Analysis

      Nemmers raises three separate claims of error, and we address each in turn.




                                          -2-
                               A. Evidentiary Rulings

       Nemmers first challenges the trial court’s rulings as to the admissibility or
exclusion of different pieces of evidence. Determinations as to the admissibility of
evidence lie within the sound discretion of the district court, which this Court reviews
for an abuse of discretion. Brunsting v. Lutsen Mountains Corp., 601 F.3d 813, 818
(8th Cir. 2010). “This deferential standard recognizes that the district court has a
range of choices, and its decision will not be disturbed as long as it stays within that
range, is not influenced by a mistake of law or fact, and does not reflect a clear error
of judgment in balancing relevant factors.” Id.

                             i. Evidence of intoxication

       Nemmers argues the district court erred by allowing evidence to be admitted
that the driver of the truck, Bradley Chrest, was intoxicated at the time of the
accident. As measured in a breath test conducted more than an hour after the
accident, Chrest’s blood alcohol content was 0.189, more than twice the legal limit.

      Nemmers claims evidence of Chrest’s intoxication should have been excluded
because it is irrelevant to her “crashworthiness”2 case against Ford. Specifically, she
argues that as a result of weather conditions on the road at the time of the accident,
a driver would only have had three to four seconds of reaction time and “the
combination of snow atop frozen ground and a 15-33% cross-slope rendered it
impossible for the driver to either (a) slow the vehicle with his brakes or (b) reacquire

      2
          The “crashworthiness” doctrine, also known as the “enhanced injury”
doctrine, “is applicable when a design defect, not causally connected to the accident,
results in injuries greater than those which would have resulted from the accident had
there been no design defect. In other words, enhancement of injuries is the gist of
crashworthiness cases, not the precipitating cause of the accident.” Reed v. Chrysler
Corp., 494 N.W.2d 224, 226 (Iowa 1992) overruled by Jahn v. Hyundai Motor Co.,
773 N.W.2d 550, 560 (Iowa 2009).
                                           -3-
the dirt road” after the truck entered the adjacent ditch. Nemmers contends “Ford
produced no concrete fact to rebut the conclusive evidence that the driver’s
intoxication (a) was not a factor in the events leading to the accident itself and (b) had
not the remotest relevance to the second-impact mechanisms that resulted in Ms.
Nemmers’ tragic injuries.”

       We do not agree. Evidence of Chrest’s negligence was properly admitted
because it was relevant to issues of causation and comparative fault under Iowa law.3
Pursuant to the Iowa Comparative Fault Act, Iowa Code chapter 668, the fault of a
released tortfeasor “whose negligence was a proximate cause of the underlying
accident and of the plaintiff’s injuries [may] be compared by the jury on [a] plaintiff’s
enhanced injury claim against the product defendant.” Jahn v. Hyundai Motor Co.,
773 N.W.2d 550, 552 (Iowa 2009). Indeed, “[u]nlike many comparative fault statutes
which apply comparative fault concepts only in cases involving negligence, Iowa’s
comparative fault statute expressly states that the fault of other parties is to be
compared in cases of negligence, recklessness, and strict liability.” Id. at 560
(internal citations omitted); cf. Shipler v. General Motors Corp., 710 N.W.2d 807,
831-32 (Neb. 2006) (concluding Nebraska legislature did not intend for comparative
negligence scheme to apply in actions based on strict liability; therefore, trial court
did not err in refusing to admit evidence of driver’s and passenger’s intoxication in
design defect case against automobile manufacturer).




      3
        “In this diversity case, we apply Iowa’s choice of law principles.” Washburn
v. Soper, 319 F.3d 338, 341 (8th Cir. 2003). The Iowa Supreme Court has chosen to
apply the Restatement’s “most significant relationship” methodology for choice of
law issues. See, e.g., Veasley v. CRST Int’l, Inc., 553 N.W.2d 896, 897 (Iowa 1996).
Nemmers is a citizen of Iowa and the accident occurred in Iowa. Absent any
argument to the contrary from the parties, we determine that Iowa has the most
significant relationship to this tort action and that Iowa law applies.

                                           -4-
        There was sufficient credible evidence that Chrest’s intoxication proximately
caused the accident. “Causation has two components: ‘(1) the defendant’s conduct
must have in fact caused the plaintiff’s damages (generally a factual inquiry) and (2)
the policy of the law must require the defendant to be legally responsible for the
injury (generally a legal question).’” Berte v. Bode, 692 N.W.2d 368, 372 (Iowa
2005) (citation and emphasis omitted). “We apply a ‘but-for’ test to determine
whether the defendant’s conduct was a cause in fact of the plaintiff’s harm.” Id. “A
defendant’s conduct is not a cause in fact if the plaintiff would have suffered the same
harm had the defendant not acted negligently. The defendant’s conduct is not a legal
cause if the harm that resulted from the defendant’s negligence is so clearly outside
the risks he assumed that it would be unjust or at least impractical to impose
liability.” Faber v. Herman, 731 N.W.2d 1, 7 (Iowa 2007) (internal citations and
alterations omitted).

       Based on the evidence presented at trial, a reasonable jury could conclude that
the truck entered the adjacent ditch because Chrest was intoxicated and thus the
accident would not have happened “but for” Chrest’s intoxication. See, e.g., Miles
v. Gen. Motors Corp., 262 F.3d 720, 723 (8th Cir. 2001) (“We find no abuse of
discretion in this instance because Miles’s alcohol consumption was relevant to the
question of whether Miles contributed to the accident.”); Nicholson v. City of Des
Moines, 67 N.W.2d 533, 537 (Iowa 1954) (“The questions whether the deceased was
intoxicated and whether such intoxication, if found to exist, contributed to his injury,
were each for the jury.”). Chrest should certainly have contemplated that he risked
injury to himself, his passengers, and to other persons on the roadway by driving
under the influence of alcohol. Accordingly, the intoxication evidence was properly
admitted to allow the jury to decide whether it was a proximate cause of the truck
accident and to compare Chrest’s fault.




                                          -5-
                ii. Evidence Nemmers was not wearing her seatbelt

         Nemmers asserts the district court erred in admitting speculative testimony that
she was not wearing her seatbelt. She argues allowing such evidence contravened
Iowa Code section 321.445, which states that failure-to-wear evidence shall not be
considered evidence of comparative fault but may be considered to mitigate damages.
See Iowa Code § 321.445.4(b). In response, Ford contends the failure-to-wear
evidence was relevant and admissible to the issue of whether the alleged defect in the
restraint system was a cause of Nemmers’s injuries. See, e.g., Hodges v. Mack
Trucks, Inc., 474 F.3d 188, 202 (5th Cir. 2006) (“[I]n secondary-collision product-
liability actions, [evidence of failure to wear a seatbelt] may be admissible to show,
or . . . rebut, the essential element of causation.”).

       Nemmers has not shown in the record that she cited to section 321.445 when
she objected to the admission of the failure-to-wear evidence. Because Nemmers
failed to articulate to the district court the precise objection she now relies upon, we
apply plain error review. Inacom Corp. v. Sears, Roebuck & Co., 254 F.3d 683, 691
(8th Cir. 2001). “‘Plain error is a stringently limited standard of review, especially
in the civil context.’ . . . To obtain relief, a party must show that a clear or obvious
error affected [her] substantial rights at trial.” Csiszer v. Wren, 614 F.3d 866, 871
(8th Cir. 2010) (internal citation omitted).

       Section 321.445 is silent, and the Iowa Supreme Court has not spoken, as to
whether section 321.445 prohibits seatbelt evidence when offered on the issue of
causation. “In the absence of guidance from the highest state court (or a statute on
point), the federal court’s task is to predict how the [Iowa] Supreme Court would rule
if confronted with the issue today.” Weitz Co. LLC v. MacKenzie House, LLC, 665
F.3d 970, 976-77 (8th Cir. 2012), cert. denied, No. 11-1349, 2012 WL 1642605 (June
18, 2012). We predict the Iowa Supreme Court would allow the failure-to-wear



                                          -6-
evidence to be admitted in this case. An essential element to establish a design defect
is that the alleged defect was the proximate cause of the personal injuries suffered by
the user. Osborn v. Massey-Ferguson, Inc., 290 N.W.2d 893, 901 (Iowa 1980). As
a result, a plaintiff is required in her case-in-chief to show she used the product she
claims is defective. See Hughes v. Massey-Ferguson, Inc., 490 N.W.2d 75, 78 (Iowa
Ct. App. 1992). If Nemmers were allowed to challenge the design of the seatbelt
without first establishing she used the seatbelt, she would be relieved of the burden
of proving all the elements of her prima facie case. Accordingly, the district court did
not err in admitting testimony that Nemmers may not have been wearing her seatbelt.

                            iii. Similar incident evidence

       Nemmers argues the trial court had an “unduly narrow interpretation of the
substantial similarity” requirement and therefore the court erred in disallowing
evidence of other similar incidents where lap-only belts caused serious or fatal
injuries. See, e.g., Lovett ex rel. Lovett v. Union Pac. R.R. Co., 201 F.3d 1074, 1081
(8th Cir. 2000) (“Evidence of similar incidents may be relevant to prove the
defendant’s notice of defects, the defendant’s ability to correct known defects, the
magnitude of the danger, the product’s lack of safety for intended uses, or
causation.”).

      Even if the district court erred in disallowing substantially similar evidence,
Nemmers failed to demonstrate in her briefing where the court did so and how she
was prejudiced. Because Nemmers failed to cite to the trial court’s ruling in the
record, we decline to address it. See Watson v. O’Neill, 365 F.3d 609, 615 (8th Cir.
2004) (“[W]e will only address [evidentiary rulings] sufficiently identified and
discussed in Watson’s brief.”); see also Fed. R. App. P. 28(a)(9)(A) (appellant’s brief




                                          -7-
must contain “citations to the authorities and parts of the record on which the
appellant relies”).4

                 B. Failure to Strike Prospective Jurors for Cause

      Nemmers contends the trial court erred by refusing to dismiss certain jurors for
cause. Like the court’s evidentiary rulings, “[w]e review denial of strikes for cause
under an abuse of discretion standard.” Moran v. Clarke, 443 F.3d 646, 650 (8th Cir.
2006).

       During voir dire, Nemmers sought to strike two separate panelists for cause.
Prospective juror Phelps stated that Ford’s local counsel, Lane & Waterman,
represented Phelps, her husband, and her brother-in-law, in a business transaction
three years earlier and the firm was one that she “would [still] use for business.”
Prospective juror Gerling proclaimed he was “a Ford guy” because not only did his
employer own “quite a few F-250s” but he himself had owned 23 Fords. The court
denied Nemmers’s requests to strike Phelps and Gerling for cause. Nemmers now
argues that she had to “exhaust all of her peremptory challenges to strike overtly
biased or prejudiced potential jurors” and that, as a result, she was forced to leave
Foreman Hill on the jury “who revealed that his significant other had been killed by
an intoxicated driver less than a year before the commencement of this trial.”




      4
        During oral argument, Nemmers’s counsel asserted the evidence that was
improperly excluded was a report prepared by the National Transportation Safety
Board (NTSB). But Nemmers did not mention the NTSB report in her opening brief,
and she did not file a reply brief. “Because this point was raised for the first time at
oral argument, and has not been briefed, it is waived.” Twin Cities Galleries, LLC
v. Media Arts Group, Inc., 476 F.3d 598, 602 n.1 (8th Cir. 2007).


                                          -8-
      The courts presume that a prospective juror is impartial, and a party
      seeking to strike a venire member for cause must show that the
      prospective juror is unable to lay aside his or her impressions or
      opinions and render a verdict based on the evidence presented in court.
      Essentially, to fail this standard, a juror must profess his inability to be
      impartial and resist any attempt to rehabilitate his position.

Moran, 443 F.3d at 650-51 (internal citation omitted). After reviewing the voir dire
transcript, we do not agree that the trial court abused its discretion in failing to
dismiss the two challenged prospective jurors for cause. During voir dire, the trial
judge asked the jury panel whether any jurors knew any reason why they could not
be fair and impartial, and neither Phelps nor Gerling gave any indication they were
unable to do so. Furthermore, Gerling was asked pointedly by Ford’s counsel
whether his affinity for Ford would affect his decisionmaking:

      Q: What I want to ask you bluntly is if Judge Wolle instructs you that
      you are to follow the law, apply that law to the evidence as it came into
      court, would you follow his instructions? . . .
      A: Yes.
      Q: Would you fairly assess the evidence and weigh it and apply the law
      as instructed to you by Judge Wolle?
      A: Yes.
      Q: And in doing that would you be able to be fair to both parties?
      A. Yes.

Nemmers has failed to meet her burden of showing that each challenged prospective
juror was “unable to lay aside his or her impressions or opinions and render a verdict
based on the evidence presented in court.” Moran, 443 F.3d at 650.5 Accordingly,


      5
       Even if we agreed with Nemmers that the prospective jurors were biased,
Nemmers cured any prejudice by using her peremptory strikes to dismiss Phelps and
Gerling from the jury. See Moran v. Clarke, 443 F.3d 646, 651 n.3 (8th Cir. 2006)


                                          -9-
the district court did not abuse its discretion in failing to dismiss the two challenged
jurors for cause.

       Nemmers also suggests that it was an abuse of discretion for the trial court to
refuse her “off-the-record request to further examine Foreman Hill in seclusion from
the rest of the panel regarding his loved one’s death.” Nemmers argues that such an
inquiry “would have revealed an additional fact that demonstrated patent for-cause
prejudice on Mr. Hill’s part: the inebriated and drug-impaired, at-fault driver [who
killed his significant other] was a lawyer.” This argument fails because we do not
consider alleged errors that are not part of the record on appeal. See, e.g., United
States v. Wadlington, 233 F.3d 1067, 1081 (8th Cir. 2000) (“We will consider only
those contentions which include ‘citations to the authorities and parts of the record
on which [he] relies.’” (quoting Fed. R. App. P. 28(a)(9)). Furthermore, although
Foreman Hill’s significant other was killed by a member of the bar, it does not follow
(nor has Nemmers demonstrated) that Hill was unable to fairly and adequately apply
the law in Nemmers’s case.

                               C. Closing Arguments

      Finally, Nemmers contends the trial court erred in failing to admonish the jury
when, during summation, defense counsel made comments suggesting Bradley and
Raymond Chrest exacerbated Nemmers’s injury after the accident. During closing
argument, defense counsel suggested that “Being dragged out of the truck’s back
window by a couple of drunk men . . . probably didn’t help matters.” Nemmers
objected to the statement and requested a curative instruction. The district court
overruled the objection.


(noting district court’s failure to strike prospective juror for cause was moot because
prospective juror was removed by peremptory challenge).


                                         -10-
       “The district court is in a better position to determine whether prejudice has
resulted from closing argument, and the appellate court will not disturb the district
court’s ruling unless there has been an abuse of discretion.” Harris v. Steelweld
Equip. Co., 869 F.2d 396, 405 (8th Cir. 1989) (citation and quotation marks omitted).
“Further, ‘to constitute reversible error, statements made in oral arguments must be
plainly unwarranted and clearly injurious.’” Id. (citation omitted).

       Arguing the district court erred by refusing to give a curative instruction,
Nemmers points to the decision in Conn v. Alfstad, 801 N.W.2d 33, 2011 WL
1566005 (Iowa Ct. App. Apr. 27, 2011) (unpublished), where the Iowa appeals court
affirmed a trial court’s decision to grant a new trial where defense counsel analogized
a lawsuit in court to “hitting a jackpot” in a casino, referred to the more than
$600,000 sought for plaintiffs’ damages, and told the jurors “It would change the
lives of you and me or anybody in this courtroom to receive that kind of money.”
2011 WL 1566005, at *4-6. The Conn court found the closing argument cast the
plaintiffs’ actions in an unfair light and violated the “golden rule” prohibition
announced by the Iowa Supreme Court, which disallows “‘[d]irect appeals to jurors
to place themselves in the situation of one of the parties, to allow such damages as
they would wish if in the same position, or to consider what they would be willing to
accept in compensation for similar injuries.’” Id. at *4 (citation omitted).

       In the instant case, we are unconvinced defense counsel’s comments made
during closing argument were unwarranted or that the comments led to prejudice.
“‘Argument of counsel is a procedural question to be determined by federal law . . . .
Under federal law, considerable discretion is given to the trial court to control
arguments . . . .’” Harris, 869 F.2d at 405 (citation omitted). Here, defense counsel
merely commented about the cause and extent of Nemmers’s neck injury. There was
evidentiary support for the notion that the Chrest brothers removed Nemmers from
the truck: she was found on the ground outside the vehicle when responders arrived.



                                         -11-
As a result, defense counsel’s comments are not like those found in Conn, where the
comments were entirely unconnected to the case and merely aimed at encouraging
jurors “to decide damages based on their personal interest rather than on the
evidence.” Conn, 2011 WL 1566005, at *5. Furthermore, Conn upheld the trial
court’s decision to grant a new trial based on the deference given to the lower court’s
evaluation of prejudice. See id. at *6-7. Similarly, in this case we defer to the district
court’s finding that there was no prejudice from the statement so as to warrant a
curative instruction.

       Because the comments made during closing argument were neither plainly
unwarranted nor clearly injurious, this court finds no abuse of discretion by the
district court.

                                    III. Conclusion

      Accordingly, we affirm.
                       ___________________________




                                          -12-
