     Case: 07-10208     Document: 00511053557          Page: 1    Date Filed: 03/16/2010




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

                                                  FILED
                                                                           March 16, 2010

                                       No. 07-10208                    Charles R. Fulbruge III
                                                                               Clerk

JEREMY GREEN,

                                                   Plaintiff–Appellant,
v.

SCHUTT       SPORTS MANUFACTURING CO., an Illinois Corporation;
SCHUTT       DESIGN GROUP, INC., an Illinois Corporation;
SCHUTT       SPORTS DISTRIBUTION COMPANY, an Illinois Corporation;
SCHUTT       MANUFACTURING COMPANY, an Illinois Corporation,

                                                   Defendants–Appellees.




                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 5:05-CV-164-C


Before GARZA, STEWART, and OWEN, Circuit Judges.
PER CURIAM:*
        Jeremy Green appeals the district court’s entry of a take-nothing judgment
following a jury verdict in favor of defendants Schutt Sports Manufacturing Co.,
Schutt Design Group, Inc., Schutt Sports Distribution Co., and Schutt
Manufacturing Co. (collectively, Schutt). Green contends that the district court
erred in (1) foreclosing his pursuit of a claim for gross negligence, (2) excluding

        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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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testimony of a witness offered as an expert, (3) excluding certain other proffered
evidence, (4) admitting certain evidence, and (5) instructing the jury. We affirm.
                                            I
         At the time of his injury, Jeremy Green was a student and football player
at Levelland High School. During a scrimmage with an opposing team, Green
tackled a player and suffered a severe burst-fracture of one of his neck vertebra
that tragically resulted in quadriplegia.
         Green sued Schutt, the manufacturer of the helmet he was wearing at the
time of his injury, asserting various theories of liability. The district court
granted summary judgment in favor of Schutt on Green’s claims of
manufacturing defects, marketing defects, and breach of warranty.                 Green
abandoned his negligence claim in the joint pre-trial order,1 and the court
subsequently dismissed Green’s claim for punitive damages based on gross
negligence. The only liability theory submitted to the jury was whether the
helmet was defectively designed.
         After an eight-day trial, the jury failed to find a design defect. The district
court entered judgment for Schutt and denied Green’s motion for a new trial.
Green has timely appealed, asserting numerous issues.
                                            II
         Green contends that the district court erred in dismissing his gross
negligence claim for punitive damages. Green argues in his briefing in this court
that Texas law “permits gross negligence claims in strict liability cases” and
similarly that “a party may pursue gross negligence damages in a strict liability
case.”
         We need not decide whether or under what circumstances recovery for
punitive damages is available under Texas law when the only cause of action


         1
        See Industrias Magromer Cueros y Pieles S.A. v. La. Bayou Furs Inc., 293 F.3d 912,
919 (5th Cir. 2002) (holding that a joint pre-trial order supersedes all other pleadings).

                                            2
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seeking recovery of actual damages is a products liability claim asserting a
design defect. A Texas statute precludes an award of exemplary damages unless
actual damages are also awarded.2 The Supreme Court of Texas has explained
that similarly, under the common law, there could be no recovery of exemplary
damages unless there was an entitlement to compensatory relief, recognizing
“the long settled rule that a plaintiff must show himself entitled to compensatory
relief before punitive damages are recoverable.”3
      In the present case, the jury failed to find a design defect. It therefore
failed to award any actual damages. Green asserted no other cause of action for
which actual damages could be awarded. He does not challenge the district
court’s ruling that he abandoned his claim for negligence. Accordingly, any
failure to submit whether Schutt was grossly negligent and whether exemplary
damages should be awarded was harmless because there is no basis for the
predicate award of actual damages.
                                              III
      At trial Green sought to call as a witness Thomas “Hollywood” Henderson,
a former National Football League linebacker. The district court concluded that
Henderson was not qualified as an expert to opine on helmet safety and design.
Green contends on appeal that this ruling was in error because Schutt’s defense
had two main components: that no helmet could be designed to prevent neck and
spine injuries, as distinguished from head injuries, and the cause of Green’s
catastrophic injury was the manner in which he executed the tackle, with his
head bent or down rather than up.                  Green contends that Henderson was
qualified to testify about “the value of football helmets,” that his testimony
would be “in many ways more valuable than that provided by any ‘technical

      2
       T EX . CIV . PRAC . & REM . CODE ANN . § 41.004(a) (“[E]xemplary damages may be
awarded only if damages other than nominal damages are awarded.”).
      3
          Travelers Indem. Co. of Ill. v. Fuller, 892 S.W.2d 848, 852 (Tex. 1995).

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expert,’” and that “this witness had the appropriate knowledge, skill and
expertise to guide this jury in resolving the question whether plaintiff’s
technique was the cause of his injury.”
       The district court did not abuse its discretion in excluding Henderson’s
testimony as an expert regarding “the value of football helmets.” There is no
evidence in this record of the witness’s expertise in this area.
       With regard to whether Green’s injury was caused by his tackling
technique, he has not explained on appeal, in even general terms, what
Henderson’s testimony would have been and how it may have assisted the jury.
We therefore have no basis for concluding that any error in excluding Henderson
as a witness was harmful.
                                               IV
       The district court denied various motions in limine that Green filed, and
Green contends that these rulings require reversal and a new trial. We review
the district court’s evidentiary rulings for abuse of discretion.4 “A trial court
abuses its discretion when its ruling is based on an erroneous view of the law or
a clearly erroneous assessment of the evidence.” 5                 If we find an abuse of
discretion in an evidentiary ruling, we review for harmless error and upset the
judgment below only if the evidentiary ruling affected the substantial rights of
the complaining party.6 Evidentiary rulings are harmless if, in the context of the
entire record, they have no effect or “very slight effect” on the jury’s verdict.7




       4
           United States v. Ragsdale, 426 F.3d 765, 774 (5th Cir. 2005).
       5
           Id. (quoting Bocanegra v. Vicmar Servs., Inc., 320 F.3d 581, 584 (5th Cir. 2003)).
       6
           Id. at 774-75 (quoting Bocanegra, 320 F.3d at 584).
       7
        Haun v. Ideal Indus., Inc., 81 F.3d 541, 547 (5th Cir. 1996) (quoting Pregeant v. Pan
Am. World Airways, Inc., 762 F.2d 1245, 1249 (5th Cir. 1985)) (internal quotation marks
omitted).

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                                                    A
       Green asserts that the district court erred by denying six motions in limine
that he filed to exclude any arguments and evidence relating to “comparative
fault, assumption of the risk, competitive sports doctrine, and related negligence
defenses.” Green does not challenge any specific evidence that was admitted at
trial, nor does he cite any part of the trial transcript as an example of evidence
that was admitted over the objections he asserted in his motions in limine.
       Even assuming, without deciding, that Green has sufficiently apprised this
court of the evidence he challenges, we cannot conclude that the district court
abused its discretion. Under Texas law, comparative responsibility expressly
applies to defective design tort claims.8 Under Texas’s statutory scheme, a
plaintiff’s recovery in tort is reduced by the proportion he contributed to causing
his own harm through actions that were negligent or otherwise fell below some
legal standard.9 (If the plaintiff’s responsibility exceeded fifty percent, recovery
is barred completely. 10 )           But consumers have no duty to discover or guard
against product defects, so a plaintiff’s failure to discover or failure to guard
against a product defect cannot reduce the amount of damages received by the
plaintiff.11
       The record reflects that Schutt’s arguments regarding Green’s role in the
causation of his injury were limited to contentions that Green tackled improperly
by lowering his head and making first contact with his helmet and that no
helmet could provide protection to the neck under such circumstances. The line



       8
        T   EX .   CIV . PRAC . & REM . CODE ANN . § 33.003.
       9
        Gen. Motors Corp. v. Sanchez, 997 S.W.2d 584, 593 (Tex. 1999) (citing TEX . CIV . PRAC .
& REM . CODE ANN . §§ 33.011(4), 33.012(a)).
       10
        T    EX .   CIV . PRAC . & REM . CODE ANN . § 33.001.
       11
            Sanchez, 997 S.W.2d at 594.

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between permissible and impermissible evidence is thin, if not blurred, when, in
a case such as this, it is permissible to offer evidence pertinent to comparative
responsibility but impermissible to offer evidence that the plaintiff failed to
guard against a product’s limitations. However, we cannot say that the district
court erred in denying Green’s motion in limine pertaining to comparative
responsibility.
      The assumption of the risk as a defense to negligence claims under Texas
law has been abrogated and replaced by the comparative responsibility regime
described above.12 But as discussed above, the evidence offered at trial that
might arguably have suggested that Schutt assumed the risks inherent in
playing football was relevant with regard to the design defect claim and the
producing cause of Schutt’s injury. The jury was not instructed that assumption
of the risk is a defense, or even relevant, to Green’s claims.
      Some Texas appellate courts have discussed the “competitive sports
doctrine.” 13 Under this doctrine, participants in competitive contact sports may
recover damages from injuries caused by other participants only if that other
participant intentionally or recklessly—not merely negligently—caused the
injury.14     But nonparticipants such as sponsors or those who maintain
equipment or facilities do not share in this reduced scope of potential liability.15
The competitive sports doctrine therefore was not a defense available to Schutt
in this case. Although there were references to the dangerous nature of football

      12
        Jackson v. Axelrad, 221 S.W.3d 650, 654 (Tex. 2007) (citing Farley ex rel. Ballman
v. M M Cattle Co., 529 S.W.2d 751, 758 (Tex. 1975)).
      13
         E.g., Moore v. Phi Delta Theta Co., 976 S.W.2d 738, 741 (Tex. App.–Houston [1st
Dist.] 1998, pet. denied); Hathaway v. Tascosa Country Club, Inc., 846 S.W.2d 614, 616-17
(Tex. App.–Amarillo 1993, no writ); Connell v. Payne, 814 S.W.2d 486, 488-89 (Tex.
App.–Dallas 1991, writ denied).
      14
           Moore, 976 S.W.2d at 741
      15
           Id. at 742 (citing Connell, 814 S.W.2d at 488).

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in the presence of the jury, including in the closing argument, there was no
discussion of the competitive sports doctrine in the presence of the jury and no
suggestion in the jury instructions that Schutt could only be liable for
intentional or reckless action.
                                                   B
         Green contends that the district court erred by permitting Schutt to
introduce evidence that Schutt complied with industry standards set by the
National Operating Committee on Standards for Athletic Equipment (NOCSAE)
and that NOCSAE is of the view that no football helmet is capable of protecting
against neck injuries. This evidence was inadmissible, Green asserts, because
compliance with industry custom is not a defense to a products liability design
defect claim based on the Texas Supreme Court’s decision in Boatland of
Houston, Inc. v. Bailey 16 and this court’s decision in Carter v. Massey-Ferguson,
Inc.17
         Green’s arguments fail for two reasons. First, Richard Stalnacker, Green’s
own expert, relied upon NOCSAE’s testing standards in his expert report and
as reference material when he tested helmets to determine if an alternate design
was feasible. At trial, Green elicited several statements from Stalnacker about
NOCSAE’s history and mission, and about NOCSAE’s testing standards. Green
may not complain about Schutt’s citation to NOCSAE standards when
Stalnacker also cited and relied upon those standards.
         Second, Boatland of Houston does not categorically preclude evidence of
industry standards in product liability cases. Instead, it holds: (a) since a
manufacturer’s level of care is irrelevant in a products liability action, evidence
that the manufacturer complied with industry standards is also irrelevant if it


         16
              609 S.W.2d 743 (Tex. 1980).
         17
              716 F.2d 344, 349 (5th Cir. 1983).

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is introduced for the purpose of showing that the manufacturer took reasonable
care in the design of its product; but (b) evidence of industry standards is
relevant if offered to rebut the plaintiff’s attempt to prove that a safer design
was technologically possible and economically feasible.18 The record reflects that
Schutt’s use of NOCSAE standards falls into the latter category. Schutt relied
upon NOCSAE’s standards to rebut Green’s attempt to prove that a safer
alternative design was feasible. Evidence that NOCSAE has concluded that no
feasible football helmet can protect players’ necks is relevant to the alternative
design element of a design defect case.
       Green argues that testimony that the Schutt DNA helmet “complied” with
NOCSAE standards confused the jury by suggesting that the helmet’s head and
brain protection were relevant to the helmet’s ability to protect the neck. But
the record does not support this contention. The transcript pages Green cites
are: (a) testimony from Robert Cantu, a neurosurgeon and vice president of
NOCSAE, that no NOCSAE-approved helmets (which include all helmets in use
in high school football) would have offered any greater protection against this
injury than the Schutt DNA helmet did; (b) testimony from Peter Halstead, a
biomechanical research scientist and technical advisor to NOCSAE, that all
football governing bodies in America (such as the NCAA, the NFL, and the
National Federation of State High Schools) require that helmets used in their
games comply with NOCSAE standards, and that NOCSAE had studied the
feasibility of helmet designs that could protect the neck and found that all
alternative designs were not feasible; and (c) testimony by Kenneth Nimmons,
executive vice president of Schutt, that Schutt helmets comply with NOCSAE
standards. None of this testimony was likely to confuse the jury about the issues


       18
         See Boatland of Houston, Inc., 609 S.W.2d at 748-49; see also Carter, 716 F.2d at 348
(holding that “evidence of industry custom is relevant to the ordinary user’s expectations” and
relevant to the risk–utility determination in Texas design defect claims).

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in the case.       Further, Green was able to cross-examine the witnesses on
NOCSAE’s current and historical statements on neck protection. When cross-
examining defense witness Halstead, Green suggested Halstead was “tell[ing]
this jury [that if] this helmet meets NOCSAE, it’s perfectly safe”; Halstead
disagreed: “No, sir, I wouldn’t [say that]. . . . I would tell you that the NOCSAE
standard does not have provisions for testing the helmet’s ability to protect the
neck.”     Thus even if there had been initial confusion from the mention of
compliance with NOCSAE standards, Green’s cross-examination allowed him to
clarify the issues and his theory of the case.
      Green also argues that the probative value of the evidence on the
NOCSAE standards was “substantially outweighed by the danger of unfair
prejudice, confusion of the issues, or misleading the jury, or by considerations of
undue delay, waste of time, or needless presentation of cumulative evidence,”
citing Federal Rule of Evidence 403. But Green does not offer any explanation
for this argument—there are no citations to case law or the record—and the
record does not support it.
                                                C
      Green asserts that the district court erred by denying his motion in limine
seeking to exclude certain types of statistical evidence. Green cites Rodriguez
v. Crown Equipment Corp.19 for the principle that we require “a showing of
substantial similarity before admitting evidence of other incidents” and that
without such a showing, “other incident testimony simply fails to meet the test
of relevancy.” Green argues that defense witness Robert Cantu referred to
statistical data without first establishing that the sources for the data were
substantially similar to the facts of Green’s case.




      19
           923 F.2d 416, 418 (5th Cir. 1991).

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      The statistical data Cantu mentioned on the transcript pages Green cites
include: (a) a survey of every catastrophic head and neck injury occurring in
football in the United States each year, and (b) a 1997 NOCSAE report of
catastrophic neck injuries in football occurring from 1977 through 1989 showing
that over 70% of such injuries happened when the tackler’s head was down.
Green argues that there was no evidence about the type of helmet, nature of the
play, or type of injury involved in these other incidents, so there was nothing to
establish the reports’ relevance to Green’s injury.
      Substantial similarity does not require an exact match. Similar to the
situation in Jackson v. Firestone Tire & Rubber Co.,20 on which the Rodriguez
court relied, a court would impose an overly “narrow and unrealistic” view of
relevance 21 if it prevented Schutt from introducing any evidence of football
injuries except those in which the football helmet, nature of the play, and type
of injury were identical to those in Green’s injury. The data in the reports was
relevant to Schutt’s defense that the method of tackling, rather than the design
of the helmet, was the cause of Green’s injury. And the data pool is substantially
similar to Green’s injury in that it involves the same sport played under the
same or similar rules with similar equipment, resulting in the same rare
injuries. These similarities are substantial enough to make the data relevant
to Schutt’s defense. The district court did not abuse its discretion by allowing
this data.
                                             D
      Green asserts that the district court erred by allowing Schutt to elicit
testimony on cross-examination of Brad Thiessen, Green’s football coach, that
the high school continued to use the Schutt DNA helmet after Green’s injury.


      20
           788 F.2d 1070 (5th Cir. 1986).
      21
           Id. at 1082-83.

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Green asserts that this statement was used “to prove non-defect” and that it was
irrelevant, improper opinion testimony, and highly prejudicial, and therefore
should have been excluded under Federal Rules of Evidence 401, 402, 403, 701,
and 702.
      Any error was harmless. The testimony at issue was a single question
(“You’re still using this helmet today. Correct?”) and answer (“Yes.”) that took
place in the eight day trial. Schutt never referred to the question again, and
never argued that the school’s continued use of the helmet implied anything
about whether it was defective.     The primary sources of evidence for both
Green’s and Schutt’s theories of the helmet’s design defect vel non were experts
who testified about the mechanics of compressive neck injuries and of helmet
design.
                                        E
      Schutt’s expert witnesses Joseph Torg, Robert Cantu, Peter Halstead, and
James McElhaney testified that Green’s tackling technique contributed to his
injury and that football helmets cannot protect the neck. Green contends these
opinions were not based upon scientific principles and methods, and were
unreliable, cumulative, and irrelevant. These witnesses—three medical doctors
and one biomechanical engineer—testified as to the physical effects and
biomechanics of the manner in which Green executed the tackle and their
opinions regarding design of a helmet to prevent injury in these circumstances.
Each had extensive experience studying neck injuries sustained by football
players. Their expert knowledge was sufficiently established to permit such
testimony.
                                        F
      The district court declined to exclude a bar graph offered at trial by Schutt
that compared its in-house test scores of its DNA model helmet and the Air
Power helmet, which Green contended was an alternative and safer helmet.

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Green acknowledges that the graph was produced 30 days before trial during the
exchange of trial exhibits. Green contends, however, that Schutt refused to
produce the underlying data and had refused to produce any testing records for
the Air Power helmet during discovery.
       Schutt countered in the district court that Green’s expert had charted
testing of the Air Power helmet in other cases. Schutt additionally argues on
appeal that Green was required, and failed, to object within 14 days after
receiving this trial exhibit, pursuant to Rule 26(a)(3)(C) of the Federal Rules of
Civil Procedure.
       We review the district court’s ruling for an abuse of discretion. Based on
the record before us and the conflicting evidence of prejudice, we cannot say that
the district court abused its discretion.
                                             G
       The district court overruled Green’s objection to evidence that both
NOCSAE and the National Football Federation 22 (NFHS or Federation) have
stated in published literature that football helmets cannot protect against neck
injuries.
       Green cites no transcript pages for these alleged evidentiary errors. In its
appellate brief, Schutt cites a portion of the direct examination testimony of
Artemio Ontiveros, an assistant coach of Green’s football team. Schutt referred
to and subsequently admitted the NFHS rulebook that governed the scrimmage
game. Green objected on the basis of relevance (with no further detail) and was
overruled. However, Green now contends on appeal that the NOCSAE and
NFHS evidence had no scientific basis and was hearsay. Green’s objection based
on relevance did not preserve these contentions for appeal.


       22
         The parties and witnesses occasionally referred to this entity by slightly different
names. The correct name and acronym for this organization appears to be the National
Federation of State High School Associations (NFHS). See http://nfhs.org.

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                                              V
      Green challenges several rulings of the district court excluding evidence
he offered.
                                              A
      The district court excluded a 1973 version of NOCSAE’s standards.
According to the document’s preamble, NOCSAE sought to develop a football-
helmet-test standard that would “improve upon the protection afforded by
helmets to prevent both head and neck injuries.” Schutt moved the district court
to exclude this evidence under Federal Rule of Evidence 403, arguing that it was
likely to confuse the jury since the language at issue provides only an aspiration
and is not a scientific finding.          Schutt further contended that more recent
literature, as well as NOCSAE’s current standard, rejects this aspiration. The
district court granted Schutt’s motion. Given the document’s aspirational tone
and age, the more recent medical literature, and NOCSAE’s change in position,
the district court did not abuse its discretion.
                                              B
      The district court excluded a design safety memorandum that had been
prepared for Bike Athletic Company in 1985. The document contains a list of 14
broad guidelines for designing safe athletic equipment, such as “exceed all
standards” and “consider safety throughout the design.” Although the document
was not prepared for Schutt, Schutt’s director of research for the DNA helmet
was an employee at Bike Athletic Company in 1985 and received the
memorandum there. Green argued that the document put this person on notice
of certain safety requirements for helmet design. Schutt contended that the
document was irrelevant and moved the court to exclude it under Rule 402. The
district court granted Schutt’s motion. “In cases involving strict liability for
defective     design,   liability   is    determined    by   the   product’s   defective



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condition . . . .” 23     Green’s cause of action was based on strict liability for
defective design. Although the document at issue may have shown “notice” to
Schutt of foreseeable risks, as Green argues, it does not tend to establish that a
defect existed. The district court did not abuse its discretion.
                                               C
       Green also claims that the district court erred in preventing him from
admitting a nine-page published paper on helmet safety. The article, which was
published in a scientific journal in 1978, explains the methodology and results
of a helmet-safety test. It concludes that helmets can reduce the compressive
force to the cervical spine, and that air-filled helmets provide better neck
protection than padded helmets. Green’s expert described the paper in great
detail. He explained how the helmet-safety test was conducted and conveyed the
paper’s conclusions. He also quoted directly from the article. When Green
attempted to admit the paper into evidence, Schutt objected that the article was
irrelevant because it was nearly 30 years old, and that it was hearsay. The
judge sustained these objections. Even if the district court erred in excluding the
article, which we do not resolve, the error did not harm Green. Green’s expert
testified extensively about the article and conveyed to the jury all helpful and
relevant information contained in it.
                                               D
       Green received medical bills totaling $831,254.74, but Medicaid and other
insurance providers settled the bills for $448,154.63. The district court ruled
before trial that Green could only seek recovery for the $448,154.63 that was
actually paid. The district court prevented Green from presenting evidence on
the remainder of the amount initially billed. Green claims that this was error.
Green’s complaint relates only to damages; because the jury failed to find in


       23
            Boatland of Houston, Inc. v. Bailey, 609 S.W.2d 743, 749 (Tex. 1980).


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Green’s favor on any theory of liability, and we are not disturbing any of the
liability determinations, we do not consider this contention.
                                                E
       In one sentence, Green asserts that the district court erred in denying his
motion to strike a brief that Schutt filed prior to trial. Green has waived this
argument by inadequately briefing it.24             But even if Green had adequately
briefed this argument, permitting the filing of this pretrial brief did not
prejudice Green.
                                               VI
       Green challenges the charge and instructions to the jury. He must show
that the “charge as a whole creates substantial and ineradicable doubt whether
the jury has been properly guided in its deliberations.” 25 If the instructions
contained an error, we still will not reverse if the record, taken as a whole,
reflects that the instruction could not have changed the case’s outcome.26
                                                A
       On appeal, Green contends that the district court “improperly commingled
negligence principles with strict liability design defect principles” and “adopted
more stringent standards than those required for strict liability claims under
Texas law.” Green’s brief contains nothing more than these two statements. He
cites no authorities, nor does he discuss the charge. Green has waived any
argument by failing to brief it adequately.
       He additionally contends that it was error to submit comparative fault to
the jury and to refuse to instruct the jury that Green had no duty to discover the



       24
            See FED . R. APP . P. 28(a).
       25
        See Pelt v. U.S. Bank Trust Nat’l Ass’n, 359 F.3d 764, 766-67 (5th Cir. 2004) (quoting
Johnson v. Sawyer, 120 F.3d 1307, 1315 (5th Cir. 1997) (internal quotation marks omitted)).
       26
            Id.

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defective condition of the helmet. Here again, Green cites to no authorities other
than the Texas Pattern Jury Charge. This is insufficient.
                                          B
      Schutt initially intended to contend at trial that Green assumed the risk
of his injury. Green argues that the court erred in allowing Schutt to introduce
evidence related to this defense and then failing to instruct the jury not to
consider this evidence after Schutt abandoned its defense during the charge
conference. Green cites no case law or other authorities, and this point has not
been adequately presented.
                                 *        *         *
      For the foregoing reasons, we AFFIRM the judgment of the district court.




                                         16
