              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE FIFTH CIRCUIT

                         ________________

                            No. 91-7138
                         ________________



JAMES C. SATCHER,

                                               Plaintiff-Appellee,

                              versus

HONDA MOTOR COMPANY, LTD., And
Its Wholly Owned Subsidiaries,
AMERICAN HONDA MOTOR COMPANY, INC.,
AND HONDA R & D CO., LTD.,

                                           Defendants-Appellants.
_________________________________________________________________

       Appeal from the United States District Court for the
                 Southern District of Mississippi
                         (CA-S-87-0635-P)
__________________________________________________________________
                        (January 25, 1993)

Before JOLLY and DUHÉ, Circuit Judges, and PARKER, District Judge.*

E. GRADY JOLLY, Circuit Judge:**

     James C. Satcher was riding a Honda motorcycle when he was

struck by an automobile that traumatically amputated his leg.    He

sued Honda under theories of strict product liability and negligent

product design, asserting that the motorcycle was defective and


     *
      Chief Judge of the Eastern District of Texas, sitting by
designation.
     **
      Local Rule 47.5 provides: "The publication of opinions
that have no precedential value and merely decide particular
cases on the basis of well-settled principles of law imposes
needless expense on the public and burdens on the legal
profession." Pursuant to that Rule, the court has determined
that this opinion should not be published.
unreasonably dangerous because it lacked leg guards.                      He also

alleged that the design was defective because the motorcycle was

not readily conspicuous to oncoming motorists.             Honda countered by

moving for summary judgment on the basis that Mississippi's "open

and obvious" doctrine barred recovery and that the motorcycle's

"inconspicuity" was not causally related to Satcher's injuries.

The district court denied Honda's motion for summary judgment and

allowed Satcher's case to proceed to trial.               The jury returned a

verdict for Satcher in the amount of $3,017,000.             Honda Motor Co.,

Ltd., American Honda Motor Co., Inc., and Honda R & D Co., Ltd.

(collectively "Honda") appeal.        We hold that under the applicable

Mississippi law, the consumer expectations test applies in product

liability cases, and because the alleged defect as well as the

danger   was   open   and   obvious    to   the   ordinary        consumer,   the

motorcycle was not "unreasonably dangerous."               Similarly, because

the danger was open and obvious to a casual observer, Satcher is

barred from recovery in his negligence claim.                Furthermore, the

motorcycle's    alleged     "inconspicuity"       could     not    have    caused

Satcher's injuries, and, because there is no causal relationship,

the "inconspicuity" claim fails. For the reasons set out below, we

REVERSE the district court's judgment and RENDER judgment in favor

of all defendants.

                                       I

     Before addressing the merits of this appeal, we must deal with

the procedural issues it presents.          Satcher argues that because




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Honda did not move for a directed verdict either after Satcher

presented his case or at the close of its case, and because it

moved for a new trial and did not ask for JNOV, the district

court's denial of summary judgment is moot and thus beyond review.

Furthermore, Satcher argues that because the jury returned a

verdict for Satcher after it was properly instructed on the "open

and obvious"   defense,     we   are    precluded    from   finding      that   no

reasonable   jury   could   have   found     that   the   defect   and    danger

presented by this motorcycle's lack of leg protection were not open

and obvious.   Similarly, Satcher argues that the jury's verdict

supports his "conspicuity" claim and it cannot now be revisited.

     Honda's motion for a new trial was understood by the trial

judge to include a motion for JNOV, including the argument that the

defendants were entitled to summary judgment.               At the hearing on

the defendants' motion for new trial, the trial judge specifically

commented on this aspect of Honda's motion1 and repeated and

readopted his denial of Honda's motion for summary judgment.

     It is well established that notices of appeal, with some few

specific exceptions, are to be read liberally. Foman v. Davis, 371

U.S. 178, 181-82, 83 S.Ct. 227, 230 (1962), McLemore v. Landry, 898

F.2d 996, 999 (5th Cir. 1990).         Consequently, we must read Honda's

     1
      "Now, at the top of Page 3, Item 4 [of Defendants' Motion
for New Trial], you again bring up open and obvious defense, and
you say to a casual observer or to any ordinary consumer, which
again is bringing back the issue of the Court's ruling on the
motion for summary judgment." (Emphasis ours.) Transcript of
5/20/91 hearing on defendants' motion for new trial, p.57.




                                       -3-
notice of appeal as placing before us each of the trial court's

adverse rulings against Honda, including its denial of summary

judgment to Honda.       See Moore's Federal Practice               § 203.17[2]

(appeal from final judgment draws into question and allows attack

on   all   prior   non-final   orders    and   all    rulings     that    produced

judgment); Blitzstein v. Ford Motor Co., 288 F.2d 738 (5th Cir.

1961).

      In reviewing the trial court's ruling on summary judgment,

this court applies the same standard as the trial court, viewing

the facts in the light most favorable to the nonmoving party.

Federal Deposit Ins. Corp. v. Hamilton, 939 F.2d 1225, 1228 (5th

Cir. 1991).    We decide questions of law de novo.           Walker v. Sears,

Roebuck & Co., 853 F.2d 355, 358 (5th Cir. 1988).            Summary judgment

is proper if the pleadings, depositions, admissions, and other

summary judgment evidence demonstrate that there is no genuine

issue of material fact and that the moving party is entitled to

judgment as a matter of law.      Fed. R. Civ. P. 56; Celotex Corp. v.

Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552 (1986); Brown v.

Southwestern Bell Tel. Co., 901 F.2d 1250, 1255 (5th Cir. 1990).

                                    II

      In reversing and rendering, it appears necessary for us to

point out that district courts are, in diversity cases, bound by

the decisions of the forum state.         Erie R.R. Co. v. Tompkins, 304

U.S. 64, 58 S.Ct. 817 (1938); Grenada Steel Industries, Inc. v.

Alabama    Oxygen    Co.,   695   F.2d    883,       885   (5th    Cir.    1983).




                                    -4-
Furthermore, under the doctrine of stare decisis, the district

court is bound by the prior decisions of this court in interpreting

Mississippi     law.     The     trial    judge    failed   to   recognize    these

principles in denying summary judgment to Honda.                       For example,

although the district court stated that "[t]he open and obvious

defense is still alive and well under Mississippi law even though

this   Court    feels    it    should     be     subsumed   by   the    comparative

negligence doctrine," (emphasis ours), Satcher v. Honda Motor Co.,

758 F.Supp. 393, 396 (S.D. Miss. 1991), it proceeded to apply the

open and obvious defense based on holdings from the Seventh Circuit

and other foreign jurisdictions, using a subjective standard. This

burst of inspired creativity directly contravened our holding in

Melton v. Deere & Co., 887 F.2d 1241, 1243-44 (5th Cir. 1989), and

the Mississippi law upon which Melton is based.                    Notwithstanding

the judge's belief that there are good policy reasons for his

approach, he was not free to apply his ex cathedra approach.

       For the reasons set out in Toney v. Kawasaki Heavy Industries,

975 F.2d 162 (5th Cir. 1992), we reverse the district court's

judgment entered upon the jury verdict in this case.                    As a matter

of   law,   Satcher     stated    no     claim    against   Honda.       Under   the

applicable Mississippi law, the consumer expectations test applies

in product liability cases, and because the alleged defect and

danger   were   open    and    obvious     to     the   ordinary    consumer,    the

motorcycle was not "unreasonably dangerous."                 Similarly, because

the danger was open and obvious to a casual observer, Satcher is




                                          -5-
barred from recovery in his negligence claim.       Furthermore, the

motorcycle's   alleged   "inconspicuity"   could   not   have   caused

Satcher's injuries, and, because there is no causal relationship,

the "inconspicuity" claim fails.2     The district court erred in

failing to grant Honda's motion for summary judgment.       This case

should never have gone to trial.      The judgment of the district

court is REVERSED and judgment for defendants is herewith RENDERED.

                                             REVERSED and RENDERED.




     2
      Satcher additionally sued Honda on the theory that the
motorcycle was unreasonably dangerous because Honda failed to
manufacture it in such a way that it was adequately conspicuous
to other vehicles. Even assuming the merit of this argument, the
evidence shows that Mrs. Fagan, the driver of the automobile that
collided with Satcher, first saw the motorcycle from a distance
and thought it was a child playing in the road. Satcher, 758
F.Supp. at 393-94. It is therefore clear that Fagan recognized
the motorcycle as an object that she should approach with care
and attempt to evade. At the time of impact, Mrs. Fagan's
automobile was "either stopped or barely moving." Satcher, 758
F.Supp. at 394. Yet she still turned her car into the
plaintiff's lane of traffic; indeed, she turned her car directly
in front of the plaintiff's motorcycle. The plaintiff's
motorcycle could not have been any more conspicuous at this
point. There is simply no causal connection between the
motorcycle's "inconspicuity" and Mrs. Fagan's collision with it.
As a matter of law, causation is lacking and this claim fails.




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