                  United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 18-2585
                         ___________________________

                                   Kristin M. Smith

                         lllllllllllllllllllllPlaintiff - Appellant

                                            v.

                             Toyota Motor Corporation

                        lllllllllllllllllllllDefendant - Appellee
                                       ____________

                     Appeal from United States District Court
                   for the Eastern District of Missouri - Hannibal
                                   ____________

                           Submitted: September 24, 2019
                               Filed: July 7, 2020
                                  ____________

Before LOKEN, COLLOTON, and KOBES, Circuit Judges.
                          ____________

KOBES, Circuit Judge.

       Kristin M. Smith sued Toyota Motor Corporation in strict products liability,
negligence, and breach of warranty for injuries she sustained in a single-vehicle roll
over accident. She alleged that her 1997 Toyota 4Runner was unreasonably prone to
roll over and that its seatbelt system failed to restrain her during the accident. The
district court1 granted summary judgment on the seatbelt defect claims and a jury
resolved the roll over tendency claims in Toyota’s favor. Smith appeals, arguing that
the district court erred by granting partial summary judgment and by allowing Toyota
to introduce hearsay about whether a prior owner had lifted the 4Runner’s
suspension. Because we conclude that Smith’s arguments were waived or are
inconsistent with positions she took earlier in her suit, we affirm.

                                          I.

       In August 2012, Smith lost control of her 4Runner. It rolled multiple times and
she was ejected through the window. She suffered serious head injuries, brain
swelling, a collapsed left lung, and rib and lumbar fractures. Two first responders
said Smith’s seatbelt was still latched after the crash. A state highway patrol trooper
and a county police officer disagreed, and the accident report noted that she was not
buckled. Following the accident, Smith’s husband took detailed photographs of the
SUV, and then had it destroyed.

       Smith’s complaint alleged a long list of defects, but only two are at issue on
appeal: (1) the 4Runner’s “unreasonable tendency to roll over in ordinary accident
avoidance maneuvers”; and (2) its lack of “adequate and reasonable levels of
occupant protection in the event of a rollover.” D. Ct. Dkt. 1 at 3–4. The first is
straightforward and supported all three of Smith’s causes of action. The nature of
Smith’s second alleged defect—which she now argues relates to the 4Runner’s
seatbelt—has been in dispute throughout this case.

      Confusion about the seatbelt defect claims arose during the deposition of one
of Smith’s experts. Toyota’s counsel asked whether the expert intended to express


      1
       The Honorable E. Richard Webber, United States District Judge for the
Eastern District of Missouri.

                                         -2-
an opinion about a seatbelt design defect. The witness responded: “it’s not my
understanding . . . that that’s been alleged here.” D. Ct. Dkt. 57-4 at 3. He later
continued: “the question that I am expected to . . . explain to the jury is if we assume
that a driver . . . was belted . . . [then] they’re fully ejected and the belt is still buckled
at the end of the event, how can you reconcile those things.” Id.

        Toyota moved for summary judgment on the ground that Smith failed to
present expert testimony showing that the seatbelt was defective. During the hearing
on the motion, the court asked Smith’s counsel to clarify her claim. Counsel stated
that Smith “did not ask [her expert] . . . [to] testify about [whether] this particular
system [was] defective.” D. Ct. Dkt. 104 at 21. Instead, the expert would “explain
how a person . . . can be belted before the accident begins yet be thrown out of the
vehicle during the course of a rollover,” which would establish a violation of Federal
Motor Vehicle Safety Standard No. 209 (FMVSS 209).2 Id. “But [Toyota] is
completely correct,” he reiterated, “that we did not ask him to go one step further and
testify about the design defect in this particular safety belt because the defect is per
se because it violates the standard.” Id. Smith’s counsel later repeated: “The claim
is very simply put, it is negligent for a manufacturer to violate a statute. FMVSS 209
is a statute. A violation of the statute can be per se negligent.” Id. at 35.

      The district court granted Toyota partial summary judgment on the seatbelt
defect claims because it determined that Smith had abandoned the causes of action
she pleaded in favor of a new negligence per se claim.

        The only question at trial was whether Smith’s vehicle was unreasonably prone
to roll over, an issue complicated by the destruction of the SUV. Smith relied on her
expert’s testimony that the 4Runner’s center of gravity was higher than other vehicles

       2
        FMVSS 209 S4.1(b) provided: “A seat belt assembly shall provide pelvic
restraint . . . [and] shall be designed to remain on the pelvis under all conditions,
including . . . roll-over of the motor vehicle.” 49 CFR § 571.209 S4.1(b) (1997).

                                             -3-
in its class. Toyota responded that a prior owner of the 4Runner, John Sell, modified
its center of gravity before selling it to Smith. Sell was never deposed, but executed
an affidavit stating that he “believe[d]” he had installed “spacers on the suspension,”
and “d[id] not remember removing” them prior to selling the vehicle to the Smiths.
D. Ct. Dkt. 73 at 4. Instead of calling Sell to testify at trial, Toyota attempted to use
its accident reconstruction expert, Lee Carr, to discuss Sell’s affidavit as a source he
relied on in forming his opinion.

       Smith objected. In a sidebar, her counsel argued that although Carr was
“permitted to give his opinion and say part of [his] opinion [was] based upon the
affidavit of Mr. Sell,” he was “not permitted to therefore say, ‘and the affidavit says
the following.’” Trial Tr., Vol. VI, 102. Toyota stated that it would not “put the
affidavit . . . into evidence,” but that Federal Rule of Evidence 703 permitted Carr to
“rely on [the affidavit] and to discuss why he’s relying on [it].” Id. Smith’s counsel
suggested that Toyota “just agreed with me,” and the exchange ended as follows:

      [SMITH]: [Carr] is permitted to say I am relying upon [the contents of
      Sell’s affidavit]. Why does it help you? Why do you rely upon it?
      Because it supports my opinion that this vehicle had this or this vehicle
      had that. [But] [h]e is not permitted to say “Mr. Sell said.”

      THE COURT: All right.

      [SMITH]: That’s my view.

      THE COURT: So as I understand, you are going to get in what you
      want to get in under this method?

      [TOYOTA]: I won’t put the affidavit in, but I will ask it: Why did you
      rely on it? What about the information you were provided did you rely?

      [SMITH]: Okay.



                                          -4-
Id. at 102–03. After this, Toyota continued to question Carr about Sell’s affidavit,
eventually asking him to describe “what information was significant . . . about
modifications that Mr. Sell made to this vehicle.” Id. at 104. In response, Carr
testified that “[Sell] stated that he placed spacers—a lift kit, in other words—on the
vehicle . . . .” Id. Smith’s counsel did not renew his objection. And later, during his
cross-examination of Toyota’s expert, Smith’s counsel returned to the subject of the
affidavit to emphasize Sell’s exact language.

       The jury found for Toyota. Smith moved for a new trial asserting that the
district court should not have granted summary judgment on the seatbelt defect claims
and permitted Toyota to introduce the contents of Sell’s affidavit to the jury. The
district court denied the motion, and Smith timely appealed. We have jurisdiction
under 28 U.S.C. § 1291.

                                          II.

       We review a district court’s decision to grant summary judgment de novo and
will affirm if there is no genuine issue of material fact and the moving party is
entitled to judgment as a matter of law. Lindholm v. BMW of N. Am., LLC, 862 F.3d
648, 651 (8th Cir. 2017). Because this is a diversity case, we apply state substantive
law and federal procedural law. Hiatt v. Mazda Motor Corp., 75 F.3d 1252, 1255
(8th Cir. 1996). The parties agree Missouri law applies.

        Smith argues that the decision to grant summary judgment for her seatbelt
defect claims was based on a misunderstanding. Instead of switching to a negligence
per se claim on the eve of trial, she contends she intended all along to establish
general negligence and strict liability through evidence that she was wearing a
seatbelt during the accident aided by her expert’s testimony about how a person could
be ejected in such circumstances. She now frames her expert’s opinion that her
seatbelt failed to comply with FMVSS 209 as merely “evidence supporting her strict
liability and negligence claims.” Smith Br. 57.

                                         -5-
       We agree with the district court that Smith’s argument is inconsistent with both
her pleadings and her counsel’s statements during the summary judgment hearing.
The district court correctly noted that Smith failed to include any reference to a
seatbelt defect in the negligence section of her complaint. The closest she came was
the allegation that Toyota was “negligent[] [when] testing the occupant restraint
system to ensure it would operate and function properly in the event of a rollover.”
D. Ct. Dkt. 1 at 4 (emphasis added). But her description of how the 4Runner had
been negligently designed made no mention of the seatbelt. This is fatal to Smith’s
negligence claim.

       Smith’s admissions during the summary judgment hearing undercut her claim
for strict products liability. To prove strict liability in Missouri, Smith needed to
show that “the [4Runner], as designed, [was] unreasonably dangerous and therefore
‘defective’, and that the demonstrated defect caused h[er] injuries.” Smith v. Brown
& Williamson Tobacco Corp., 275 S.W.3d 748, 792 (Mo. Ct. App. 2008) (quotation
omitted). “[T]he primary inquiry . . . is whether the product—because of the way it
is designed—creates an unreasonable risk of danger.” Id. A claim for negligence per
se, by contrast, requires only “[t]he violation of a statute, which is shown to be the
proximate cause of [an] injury.” Dibrill v. Normandy Assocs., Inc., 383 S.W.3d 77,
84 (Mo. Ct. App. 2012). During the hearing, Smith’s attorney repeatedly emphasized
that Smith “did not ask [her expert] to . . . testify about the design defect in this
particular safety belt,” and stated instead that her seatbelt claims were grounded in the
violation of FMVSS 209. D. Ct. Dkt. 104 at 21. Given Smith’s concessions that
there was no evidence relating to the design of the seatbelt and that her claims instead
centered on FMVSS 209, the district court did not err in determining that she had
abandoned her claim for strict liability.3



      3
       The district court also held that Smith’s breach of warranty claim relating to
the seatbelt defect was derivative of her strict liability and negligence claims, and
therefore falls along with those claims. Smith does not contest this on appeal.

                                          -6-
       Smith’s attempts to claw back her counsel’s statements are unavailing. She
notes that “an ambiguous statement made during oral argument,” does not “waive[]
an argument clearly raised in a brief.” Smith Br. 56 (quoting Santos v. Frederick Cty.
Bd. Of Comm’rs, 725 F.3d 451, 463 (4th Cir. 2013)). But not only were Smith’s
counsel’s statements unambiguous, they were repeated. We agree with the district
court that “[i]f Plaintiff wanted to prove . . . she had enough evidence to establish a
design defect under traditional theories of strict liability . . . [she] should have done
so at th[e] hearing.” D. Ct. Dkt. 184 at 4. She cannot now “avoid [a] district court’s
adverse ruling by changing horses midstream.” Pub. Water Supply Dist. No. 3 of
Laclede Cty., Mo. v. City of Lebanon, Mo., 605 F.3d 511, 524 (8th Cir. 2010).

                                          III.


       Smith next contends that the district court improperly allowed Toyota to
introduce hearsay about Sell’s modifications to the 4Runner. Though Federal Rule
of Evidence 703 permits experts to rely on hearsay in certain circumstances, Smith
argues that Carr was not testifying as an expert when discussing Sell’s affidavit and
that the court failed to perform the balancing test required by Rule 703 before
admitting the testimony. We decline to reach these arguments because Smith failed
to preserve them below.

       The parties present two ways of interpreting the sidebar with the district court
on this issue. Toyota contends that, after Smith objected, the parties reached an
agreement about what Toyota was permitted to ask, and so the court never actually
ruled on the objection. Toyota Br. at 25–26. We agree with Toyota that this is the
most plausible reading of what occurred, and further agree that this means Smith’s
claim fails because there is no ruling for us to review on appeal. See United States
v. Tiger, 223 F.3d 811, 813 (8th Cir. 2000) (“[I]n order to determine whether an abuse
of discretion occurred, there must have been a ruling as to the admissibility of the
evidence in question.”); see also Dean v. Searcey, 893 F.3d 504, 520 n.23 (8th Cir.

                                          -7-
2018) (“[C]ounsel ‘cannot as a rule remain silent, interpose no objections,’” and then
claim error.) (citation omitted).

       Smith disagrees. From her perspective, the court’s question at the end of the
sidebar—“So as I understand, you are going to get in what you want to get in under
this method?,” Trial Tr., Vol. VI, 103—implicitly constituted a ruling. But even if
we were to accept this theory, Smith still loses. Under the invited error doctrine,
“[a]n erroneous ruling generally does not constitute reversible error when it is invited
by the same party who seeks on appeal to have the ruling overturned.” Matthew v.
Unum Life Ins. Co. of Am., 639 F.3d 857, 868 (8th Cir. 2011) (citation omitted).
Here, it was Smith who provided the roadmap for Carr’s testimony going forward.

                                          IV.

      The judgment of the district court is affirmed.
                     ______________________________




                                          -8-
