     Case: 09-60533     Document: 00511019258           Page: 1   Date Filed: 02/03/2010




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

                                                  FILED
                                                                          February 3, 2010

                                     No. 09-60533                      Charles R. Fulbruge III
                                   Summary Calendar                            Clerk



DONNA RUTLEDGE,

                                                   Plaintiff - Appellant
v.

HARLEY-DAVIDSON MOTOR CO.,

                                                   Defendant - Appellee




                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                               USDC No. 08-CV-65


Before KING, STEWART, and HAYNES, Circuit Judges.
PER CURIAM:*
        Donna     Rutledge     appeals      a   grant     of   summary       judgment      for
Harley–Davidson Motor Co. in this products liability action arising from a
motorcycle accident. For the following reasons, we AFFIRM.
                                   I. BACKGROUND
        Donna Rutledge was injured when her motorcycle ran off the road on
December 29, 2006. Rutledge purchased the motorcycle new on December 13,


        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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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2006, from the Chunky River Harley–Davidson dealership, in Meridian,
Mississippi. The motorcycle was manufactured by Harley–Davidson Motor Co.
(Harley–Davidson).     On the morning of the accident, Rutledge drove the
motorcycle the short distance from her home to the post office; during the ride
she felt problems with the steering mechanism in the motorcycle.           In the
afternoon, she and a friend went for a longer ride. As the two riders approached
a curve, Rutledge was unable to steer the motorcycle to the right, and, as a
result, the motorcycle ran off the road and crashed. At the time of the accident,
Rutledge was driving within the speed limit, and the road was dry,
unobstructed, and in good condition. Rutledge sustained serious injuries.
      Harley–Davidson sent out two recall notices affecting the model of
Rutledge’s motorcycle, first on January 22, 2007, and again on March 15, 2007.
The recall informed motorcycle owners that the size and location of a voltage
regulator could make contact with the front fender of the motorcycle in certain
circumstances, potentially impacting the driver’s ability to steer.
      Rutledge sued Harley–Davidson for negligence, breach of implied
warranty, and strict products liability under the Mississippi Products Liability
Act, M ISS. C ODE A NN. § 11-1-63(a) (2004). Federal jurisdiction was based on
diversity of citizenship, 28 U.S.C. § 1332.      In arguing that the steering
mechanism in her motorcycle was defective, she relied on the recall notices from
Harley–Davidson and declined to produce her own expert to provide evidence on
the existence of a defect. Harley–Davidson moved for summary judgment,
arguing that Rutledge failed to prove that a specific defect existed in her
motorcycle, as required by Mississippi law. Harley–Davidson submitted an
affidavit from an engineering expert, who examined the photographs of the
motorcycle after the accident, the recall notices, and Rutledge’s insurer’s repair




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estimate for the motorcycle.1 Harley–Davidson’s expert opined that “[i]f the
voltage regulator recall condition existed on Ms. Rutledge’s motorcycle and
caused her December 29, 2006[,] accident, it would be because the rear of the
front fender of her motorcycle would have engaged with the top of the voltage
regulator on her motorcycle.” After examining each photograph of the post-
accident motorcycle, the expert concluded that there was no sign of contact
between the rear of the front fender and the top of the voltage regulator;
therefore, he concluded that “[b]ased on the absence of any evidence of contact
between the top of the voltage regulator and the rear of the front fender on Ms.
Rutledge’s motorcycle, the condition described in [the recall notices] did not
cause Ms. Rutledge’s accident.”
       The district court granted summary judgment for Harley–Davidson,
finding    that    the     recall   notices—evidence       of   subsequent       remedial
measures—were inadmissible under Federal Rule of Evidence 407 (Rule 407).
Absent the recall notices, the district court found that Rutledge failed to raise
a genuine issue of fact as to the existence of a design or manufacturing defect.
Rutledge timely appealed.
                            II. STANDARD OF REVIEW
       We review a district court’s grant of summary judgment de novo. LeMaire
v. La. Dep’t of Transp. & Dev., 480 F.3d 383, 386 (5th Cir. 2007). Summary
judgment is appropriate when “the discovery and disclosure materials on file[]
and any affidavits show that there is no genuine issue as to any material fact
and that the movant is entitled to judgment as a matter of law.” F ED. R. C IV. P.
56(c); Breaux v. Halliburton Energy Servs., 562 F.3d 358, 364 (5th Cir. 2009).
“A genuine issue of material fact exists if a reasonable jury could enter a verdict
for the non-moving party.” Brumfield v. Hollins, 551 F.3d 322, 326 (5th Cir.

       1
        The actual motorcycle was unavailable for physical inspection, as Rutledge’s insurer
had declared it totaled and sold it for salvage prior to Rutledge’s decision to file suit.

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2008). We must take all the facts and evidence in the light most favorable to
Rutledge, the non-moving party. Breaux, 562 F.3d at 364.
                                   III. DISCUSSION
       We have jurisdiction under 28 U.S.C. § 1291. As this is a diversity case,
we apply the substantive law of Mississippi under the Erie doctrine. Rutledge
raises two main issues on appeal.2 First, she argues that the district court erred
in excluding the two recall notices under Rule 407. She also argues that the
district court erred in its conclusion that she failed to raise a genuine issue of
material fact on her products liability claims.
                                     A. Recall Notices
       Rutledge argues that the district court erred by characterizing the recall
notices as subsequent remedial measures under Rule 407, which states:
       When, after an injury or harm allegedly caused by an event,
       measures are taken that, if taken previously, would have made the
       injury or harm less likely to occur, evidence of the subsequent
       measures is not admissible to prove negligence, culpable conduct, a
       defect in a product, a defect in a product’s design, or a need for a
       warning or instruction. This rule does not require the exclusion of
       evidence of subsequent measures when offered for another purpose,
       such as proving ownership, control, or feasibility of precautionary
       measures, if controverted, or impeachment.
F ED. R. E VID. 407. This is an evidentiary question; as such, we review for abuse
of discretion. See United States v. Smith, 481 F.3d 259, 264 (5th Cir. 2007);
Underwriters at Lloyd’s London v. OSCA, Inc., Nos. 03-20398, 03-20817, 03-
21021, 2006 WL 941794, at *4–5 (5th Cir. Apr. 12, 2006) (reviewing Rule 407
decision for abuse of discretion).




       2
         Rutledge also challenges the district court’s alternative holding that even if Rutledge
had established the existence of a defect, she would be barred from recovering on the implied
warranty claim as she did not give Harley–Davidson the opportunity to cure. Given our
disposition of the first two issues, we do not need to address this issue.

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       Before the district court, Rutledge argued that “Harley–Davidson admits
[through the recall notices] that these motorcycles were ‘built with voltage
regulator part number 74546-07 which, as a result of a greater body thickness
than used in previous model years, may contact the front fender under certain
circumstances.’” Because of this statement, the district court concluded that
Rutledge was offering the recall notices only as evidence of the existence of a
defect. Rutledge asserts that she offered the recall notices “to prove that there
was a pre-existing condition that caused her motorcycle to be potentially
dangerous” and to show Harley–Davidson’s ownership or control of the design,
the existence of a duty to motorcycle owners, and the feasibility of an alternative
design.
       The recall notices were issued in January and March 2007, after
Rutledge’s accident in December 2006. 3 If Rutledge had received the notices
before the accident and taken the motorcycle to the dealership for repair, it
might have made her injury less likely to occur. Therefore, the district court
correctly identified the recall notices as subsequent remedial measures under
Rule 407.
       Rutledge acknowledges that she offered the notices to show “a pre-existing
condition that caused her motorcycle to be potentially dangerous.” This purpose
falls squarely within Rule 407’s bar on evidence of subsequent remedial
measures offered “to prove . . . a defect in a product[ or] a defect in a product’s
design.” While Rutledge argues on appeal that she has other purposes for

       3
          Rutledge argues that the notices do not qualify as subsequent remedial measures
because “it seems reasonable that studies and tests done to determine the need for the recall
and then the printing and gathering of information to send the recall notice to the masses
would have taken more than a months [sic] time.” She posits that because of the time it took
Harley–Davidson to develop the recall notices, Harley–Davidson must have taken steps
towards providing the remedial measures before Rutledge’s accident. However, Rutledge fails
to offer any competent summary judgment evidence to support these speculative assertions.
FED . R. CIV . P. 56(c). Therefore, she has not shown that the district court abused its
discretion.

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introducing the notices,4 she does not deny offering the notices as proof of a
defect in addition to her other reasons. As discussed in greater detail below, the
recall notices constituted the only competent summary judgment evidence that
Rutledge attempted to submit to establish the existence of a defect; therefore,
Rutledge’s asserted “other purposes” for offering them do not except the notices
from Rule 407. The district court did not abuse its discretion in excluding the
notices.
                                 B. Summary Judgment
       In her complaint, Rutledge raised claims for negligence, breach of implied
warranty, and strict products liability, and the district court granted summary
judgment on all three claims. In her brief to this court, she generally refers to
the warranty and negligence claims, but she does not point to specific facts in the
record to support the elements of those two claims, nor does she make any
arguments specifically tailored to those claims. Therefore, she has waived her
arguments on appeal as regards the negligence and warranty claims.                          See
Goodman v. Harris County, 571 F.3d 388, 399 (5th Cir. 2009) (issues
inadequately briefed on appeal are waived).
       To survive summary judgment on a Mississippi strict products liability
suit, a plaintiff must raise a genuine issue of material fact as to whether
       at the time the product left the control of the manufacturer or seller:
       (i)    1. The product was defective because it deviated in a material
              way from the manufacturer’s specifications or from otherwise
              identical units manufactured to the same manufacturing
              specifications, or


       4
         Rutledge relies on Bailey v. Kawasaki–Kisen, K.K., 455 F.2d 392 (5th Cir. 1972), as
support for her argument that the notices should come in under an exception to Rule 407.
However, this case preceded both the Federal Rules of Evidence and the 1997 Amendments
to the Rules, which added that “subsequent remedial measures may not be used to prove ‘a
defect in a product or its design.’” FED . R. EVID . 407 advisory committee notes. As such,
Rutledge’s reliance on Bailey fails to persuade us that the district court abused its discretion.


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            2. The produce was defective because it failed to contain
            adequate warnings or instructions, or
            3. The product was designed in a defective manner, or
            4. The product breached an express warranty or failed to
            conform to other express factual representations upon which
            the claimant justifiably relied in electing to use the product;
            and
      (ii) The defective condition rendered the product unreasonably
      dangerous to the user or consumer; and
      (iii) The defective and unreasonably dangerous condition of the
      product proximately caused the damages for which recovery is
      sought.
M ISS. C ODE A NN. § 11-1-63(a).    Rutledge’s complaint alleges violations of
subsections (i)(1) and (i)(3)—manufacturing defect and design defect.         The
district court found that, without the recall notices, Rutledge failed to raise a
genuine issue of material fact as to whether the motorcycle was defective—a
prerequisite to recovery. Rutledge argues that she did, in fact, raise a fact issue
sufficient to survive summary judgment because she introduced her own
deposition testimony that: she was an experienced motorcycle driver; she did not
make any modifications to the motorcycle between its purchase and the accident;
on the day of the accident the weather was clear, the road was unobstructed, and
she was driving within the speed limit; and the motorcycle failed to steer when
she attempted to turn it to the right. According to Rutledge, these facts were
enough to raise a genuine fact issue. In particular, she argues that this was
sufficient to contradict the affidavit of Harley–Davidson’s expert, which
concluded that the condition described in the recall notices did not cause the
accident.
      Under Mississippi law, “the existence of a product defect must be
established before recovery may be obtained for a resulting injury” in strict
products liability. Gray v. Manitowoc Co., Inc., 771 F.2d 866, 869 (5th Cir.


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1985); see also Moss v. Batesville Casket Co., Inc., 935 So. 2d 393, 405–06 (Miss.
2006) (“Regardless of which subsection of M ISS. C ODE A NN. § 11-1-63(a)(i) a
plaintiff sues under, the plaintiff must prove [that] the defective condition
rendered the product unreasonably dangerous to the user or consumer . . . .”).
Merely offering evidence that damage occurred after the use of a product is
insufficient to establish liability. See William Cooper & Nephews, Inc. v. Pevey,
317 So. 2d 406, 409 (Miss. 1975) (“Mere proof of damage following [the] use [of
the allegedly defective product] was not sufficient to establish liability . . . .”);
57B A M. J UR. 2 D Negligence § 1187 (2009) (“The doctrine of res ipsa loquitur is
inapplicable in any action predicated upon the theory of strict liability.”).
      As the moving party, Harley–Davidson bore the initial burden of
“informing the district court of the basis for its motion, and identifying the
portions of the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, which it believes
demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986) (quotation marks omitted). By submitting the
expert affidavit with its conclusion that “[b]ased on the absence of any evidence
of contact between the top of the voltage regulator and the rear of the front
fender on Ms. Rutledge’s motorcycle, the condition described in [the recall
notices] did not cause Ms. Rutledge’s accident,” Harley–Davidson satisfactorily
met its preliminary burden of establishing the absence of a fact issue.
      At this point, the burden shifted to Rutledge to “go beyond the pleadings
and designate specific facts showing that there is a genuine issue for trial.”
Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc). Rutledge
failed to do so; she offered no evidence independent of the inadmissible recall
notices to show that a specific defect existed in her motorcycle. As such, the
district court did not err in granting summary judgment for Harley–Davidson.



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      One motion remains outstanding on this appeal. Harley–Davidson moved
to strike portions of Rutledge’s brief as discussing matters outside the record.
This motion is DENIED.
                             IV. CONCLUSION
      For the foregoing reasons, we AFFIRM the district court’s grant of
summary judgment for Harley–Davidson and DENY the motion to strike.




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