           RECOMMENDED FOR FULL-TEXT PUBLICATION
                Pursuant to Sixth Circuit Rule 206                       2    Nemir v. Mitsubishi               Nos. 02-1780; 03-1228
        ELECTRONIC CITATION: 2004 FED App. 0273P (6th Cir.)                   Motor Corp., et al.
                    File Name: 04a0273p.06
                                                                                             _________________
UNITED STATES COURT OF APPEALS                                                                    COUNSEL
                  FOR THE SIXTH CIRCUIT                                  ARGUED: Mark R. Bendure, BENDURE & THOMAS,
                    _________________                                    Detroit, Michigan, for Appellant.       David R. Kelly,
                                                                         BOWMAN & BROOKE, Minneapolis, Minnesota, for
 MICHAEL A. NEMIR, M.D.,          X                                      Appellees. ON BRIEF: Mark R. Bendure, BENDURE &
          Plaintiff-Appellant,     -                                     THOMAS, Detroit, Michigan, Craig E. Hilborn, HILBORN
                                   -                                     & HILBORN, Birmingham, Michigan, for Appellant. David
                                   -  Nos. 02-1780;                      R. Kelly, BOWMAN & BROOKE, Minneapolis, Minnesota,
           v.                      -  03-1228                            Fred J. Fresard, Gretchen A. Colter, BOWMAN & BROOKE,
                                    >                                    Troy, Michigan, for Appellees.
                                   ,
 MITSUBISHI MOTORS                 -
 CORPORATION ; CHRYSLER                                                                      _________________
                                   -
 CORPORATION ,                     -                                                             OPINION
       Defendants-Appellees. -                                                               _________________
                                   -
                                  N                                        R. GUY COLE, JR., Circuit Judge. This case reaches us
      Appeal from the United States District Court                       for the fourth time. See Nemir v. Mitsubishi Motor Sales of
     for the Eastern District of Michigan at Detroit.                    Am., Inc., 6 Fed. Appx. 266 (6th Cir. 2001) (unpublished)
      No. 96-75380—John Feikens, District Judge.                         (per curiam) (“Nemir I”); In re. Michael A. Nemir, No. 01-
                                                                         2260 (6th Cir. Oct. 12, 2001) (“Nemir II”); Nemir v.
                    Argued: March 18, 2004                               Mitsubishi Motor Sales of Am., Inc., No-02-1780 (6th Cir.
                                                                         Feb. 3, 2003) (“Nemir III”). Plaintiff-Appellant Michael A.
             Decided and Filed: August 20, 2004                          Nemir brought a diversity products liability suit against
                                                                         Defendants-Appellees Mitsubishi Motors Corporation and its
         Before: COLE and GILMAN, Circuit Judges;                        parent company, Chrysler Corporation, alleging that his
            SCHWARZER, Senior District Judge.*                           seatbelt’s failure to latch caused injuries that left him brain-
                                                                         damaged and paralyzed following a car accident. After the
                                                                         jury rejected Nemir’s claims, the district court entered
                                                                         judgment for, and awarded costs to, Mitsubishi, and Nemir
                                                                         appealed both decisions. For the following reasons: (1) the
                                                                         district court’s judgment for Mitsubishi is REVERSED and
                                                                         the case is REMANDED for a new trial; (2) the district
    *                                                                    court’s award of fees to Mitsubishi is VACATED; and (3) the
     The Honorable William W Schwarzer, Senior United States District    case is to be assigned to a different district judge.
Judge for the Northern District of California, sitting by designation.

                                  1
Nos. 02-1780; 03-1228                Nemir v. Mitsubishi       3    4    Nemir v. Mitsubishi              Nos. 02-1780; 03-1228
                                      Motor Corp., et al.                Motor Corp., et al.

                     I. BACKGROUND                                    In December 1994, based on complaints it had received, the
                                                                    National Highway Traffic Safety Administration (NHTSA)
   Given this case’s dense history and its relevance to today’s     opened an investigation into “[a]lleged defect[s] of Takata
appeal, we will narrate the background in some detail. On           seat belt buckles includ[ing] failure to latch, unlatch, or
December 14, 1993, near his home in Maryland, Nemir drove           remain latched.” NHTSA requested information from
his car into a tree on the side of the road, causing his head to    Chrysler, including complaints received from its customers,
strike a pillar on the car’s passenger side. He was found lying     pertaining to “all model years 1986 through 1991 Dodge
in the car’s backseat, and the driver’s side seatbelt was           Colt[s] and any other passenger motor vehicles equipped with
unlatched. The accident damaged Nemir’s brain stem,                 Takata [52] series.” (In 1996, owing to a manufacturing
leaving him wheelchair bound, cortically blind, and unable to       defect, some Takata 52 seatbelts—but not the seatbelt at issue
continue practicing medicine. On November 22, 1996, Nemir           in our case—were recalled.)
filed suit against Mitsubishi, the maker of the 1991 Dodge
Stealth that Nemir was driving, and Chrysler, of which                 Aware of this investigation, Nemir sought discovery from
Mitsubishi is a subsidiary. (For simplicity’s sake, we will         Mitsubishi of “[a]ll documents containing, referring to, or
refer to the defendants collectively as “Mitsubishi.”)              relating to any claims, assertions, or reports by an individual
                                                                    or entity that any Dodge vehicle using the same or similar
   Nemir’s complaint alleged that at the time of the accident,      seatbelt system wherein a front seat belted passenger received
he had been wearing his seatbelt— the Takata 52—but that it         a serious or fatal injuries.” On October 31, 1997, Mitsubishi
had only “partially latched,” such that it appeared to be           responded that it “has no documents responsive to this
properly fastened when in fact it was still prone to unlatching.    request.” On September 11, 1998, Mitsubishi reaffirmed that
Seeking both compensatory and punitive damages, Nemir               it “currently is unaware of any materials responsive to this
asserted that the seatbelt was defectively designed because of      request.” When Nemir further pressed the issue at a hearing
its potential to unlatch, and because of the vehicle’s failure to   held on November 17, 1998, Mitsubishi insisted that “[w]ith
alert the driver that the seatbelt was not fully latched. The       respect to all of the requests that are contained in the order,
failure to warn and punitive damages claims were                    we produced what documents exist and what documents were
subsequently dismissed, and we affirmed those dismissals in         able to be located . . . we searched, as we did for all of the
Nemir I, 6 Fed.Appx. at 277.                                        other requests, and found nothing that was responsive to the
                                                                    request.”
  Prior to trial, Nemir retained an expert witness, Dr. Thomas
Horton, the former Director of Engineering for Takata, Inc.,          Nemir eventually filed a Freedom of Information Act
the seatbelt’s manufacturer. Horton planned to testify that         request with NHTSA, and subsequently obtained 200 to 300
Nemir’s seatbelt suffered from a design defect, known as            complaints of partial latching in Mitsubishi and Chrysler
“partial-latching,” which caused the seatbelt to unlatch during     automobiles.       The documents included evidence of
the accident. However, the district court ruled that Horton         “[Mitsubishi’s] own employees going out and confirming
was unqualified to testify as an expert witness, due to             partial latch in the field.” When asked by the district court
purported deficiencies in his methodology.                          whether Mitsubishi had any additional documents similar to
                                                                    the ones that Nemir obtained from the NHTSA, Mitsubishi’s
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counsel told the court that “I don’t know of any other             abovementioned testing] to testify that the partial latch of Dr.
documents, Your Honor.”                                            Nemir’s seatbelt caused the damage in question.” Id. at 275.
                                                                   Third, we held that Nemir had produced sufficient evidence
   The district court ordered Mitsubishi to search again for       for a jury to conclude that a design defect rendered the buckle
additional complaints in its possession. On April 13, 1999,        unreasonably dangerous. Id. at 277. We remanded for trial.
Mitsubishi admitted that it possessed, but had not previously
disclosed, approximately 4,000 customer contact reports               We also ordered the district court to afford Nemir sufficient
documenting complaints, along with approximately 25,000            time and opportunity to investigate the consumer complaints
warranty claims about the partial latching of the seatbelts.       that Mitsubishi had turned over at “the eleventh hour.” Id. at
Mitsubishi—who claimed to have previously withheld these           275. Although Mitsubishi argued that none of the consumer
documents because “they do not show claims that partial            complaints contained the words “partial latch,” and thus were
latching occurred in the manner alleged to have occurred in        not discoverable, we rejoined that “the term ‘partial latch
this case”—continued to maintain that the documents should         phenomenon’ is a term of art employed by engineers, seatbelt
not be disclosed to Nemir.                                         designers, and lawyers. The layman with a concern that his
                                                                   seatbelt will not remain fastened will not use this term.” Id.
   Although the district court disagreed, it also prohibited       at 276. After reviewing the sample of 188 complaints that
Nemir from “conduct[ing] further discovery by attempting to        Nemir had included in the appellate record, we noted that “
interview or contact complainants listed in these documents.”      [a] complete review of the record indicates that phraseology
Moreover, the district court scheduled argument on                 analogous to ‘intermittent partial latching’ occurred 188 times
Mitsubishi’s motion for summary judgment for May 21,               in the customer complaints submitted as evidence. To
1999—just seventeen days after the 29,000 documents were           summarily dismiss this evidence without affording the
ordered disclosed. On July 30, 1999, the district court            plaintiff time to investigate and further elicit information
granted summary judgment to Mitsubishi, holding that Nemir         regarding the exact nature of these incidents is clear error.”
had failed to present evidence by which a reasonable jury          Id.
could find (under Maryland law, which the parties agree
controls) that the buckle suffered from a design defect. Nemir       On remand, the district court issued a new protective order.
v. Mitsubishi Motor Sales of America, 60 F.Supp.2d 660, 673-       The order limited Nemir’s discovery to “the 188 complainants
77 (E.D.Mich. 1999).                                               referred to by” our decision in Nemir I. Although Nemir
                                                                   argued to the district court that Nemir I singled out 188
  In Nemir I, we reversed. First, we noted that the district       complaints only because that was the number of complaints
court had erroneously stated that Horton had not examined the      that had been included in the appellate record—in other
actual buckle in Nemir’s seatbelt—an omission that the             words, that we had not manually sifted through each and
district court had dubbed “inexplicable”—when in fact the          every of the 29,000 complaints and determined that only 188
record revealed that Horton had testified that he had examined     were relevant—the district court nonetheless refused to allow
the actual buckle and that it had partially latched twice out of   Nemir to investigate the other 28,000-plus complaints,
twenty attempts. Id. at 274. Second, we held that the district     insisting that “I’m going to stay literally with what the panel
court erroneously excluded the entirety of Horton’s                said.”
testimony, and specifically held that “Horton could use [the
Nos. 02-1780; 03-1228               Nemir v. Mitsubishi       7    8     Nemir v. Mitsubishi              Nos. 02-1780; 03-1228
                                     Motor Corp., et al.                 Motor Corp., et al.

   In addition, the order prohibited Nemir from directly             When Nemir pressed for sanctions at a hearing conducted
contacting any of Mitsubishi’s consumers outside of defense        on March 16, 2001, the district court refused to “reach the
counsel’s presence. Of the 188 customers that Nemir was            motion for sanctions at this point,” and complained that “I
permitted to contact, he was able to locate only thirteen. Prior   just don’t want to be bothered with sanctions.” Instead, the
to the depositions of those witnesses, Nemir asked the district    district court decided to “stay that matter and return to it when
court for permission to contact additional complainants            the time is appropriate.” The district court never revisited the
beyond the original 188; the district court told Nemir that he     motion, and also prohibited Nemir from informing the jury
should conduct the first set of depositions, and then “if you      that Mitsubishi had initially withheld the consumer
need to expand this discovery further, come back to me on it.”     complaints.
Nemir never did so.
                                                                     In addition, despite our holding in Nemir I that its
   Nemir did ask the district court to sanction Mitsubishi for     namesake had “demonstrate[d] a triable issue of fact with
its refusal to disclose the 29,000 documents. He appended to       regard to the design defect condition and the unreasonably
his motion evidence that the improper withholding of relevant      dangerous condition of the product,” the district court again
discovery was not an uncommon practice of both Mitsubishi          ruled that “[n]othing in the record before [us] indicates that
and its lead counsel. Nemir attached an affidavit from a           Dr. Nemir’s seatbelt caused an unreasonably dangerous
plaintiff’s attorney, who had litigated against Mitsubishi in a    condition.” Convinced that the district court had ignored our
prior case and averred that “Mitsubishi [had] repeatedly           prior decision to the contrary, Nemir sought from us a writ of
refused to turn over properly requested information and            mandamus compelling the district court to “submit to the jury
respond to interrogatories,” and “did not produce certain          the issue of ‘inherently unreasonable risk’ in accord with
materials until it was threatened with daily fines.” Also          [Nemir I].” The district court responded to the petition for
submitted by Nemir was a copy of the decision in Baker v.          mandamus by assuring us that its ruling was “subject to
General Motors Corp.,159 F.R.D. 519 (W.D. Mo. 1994),               change based on the proofs that are presented.” Nemir II, slip
reversed on other grounds, Baker v. General Motors Corp.,          op at 5. Relying on the district court’s assurances, we denied
86 F.3d 811, 817 (8th Cir. 1996), in which Mitsubishi’s lead       the petition for mandamus, concluding that “[t]he case is
counsel had defended General Motors against lawsuits               proceeding to trial in accordance with our determination that
arising from electrical fires in certain vehicles. There, the      the plaintiff has presented sufficient proof to create a question
court noted that “[e]very time a request was made for a            for the jury regarding his design defect claim.” Nemir II, slip
document, [counsel] took it upon [him]self to determine what       op. at 2.
scope [he] thought was relevant,” id. at 523, the court found
numerous examples “of the types of critical documents that           Notwithstanding our instructions in Nemir II, the district
were ‘dumped’ on plaintiffs the week before trial,” id. at 522,    court, pursuant to Federal Rule of Evidence 706, appointed
and the court concluded that there was a “deliberate, willful      Eddie P. Cooper and Lindley Manning as experts to help the
policy on the part of [counsel] to stonewall discovery as much     court “determine whether the seatbelt buckle presented an
and as long as the patience of the Court would tolerate.” Id.      inherent unreasonable risk of danger to the plaintiff.”
at 524.                                                            Cooper—who was employed by a consulting company that
                                                                   had performed significant work for Mitsubishi and
                                                                   Takata—concluded that the seatbelt was not inherently
Nos. 02-1780; 03-1228               Nemir v. Mitsubishi       9    10   Nemir v. Mitsubishi               Nos. 02-1780; 03-1228
                                     Motor Corp., et al.                Motor Corp., et al.

dangerous. Manning, echoing Horton’s conclusions, testified        by confronting him with a contradictory excerpt from a book
that he too had been able to partially engage the Nemir buckle     that had been co-authored by Dr. Werner Spitz, another of
during laboratory testing. Manning also opined that “the           Mitsubishi’s experts. The district court prohibited this
defect that we found is unreasonably dangerous . . . . The fact    questioning, however, concluding that because Dr. Spitz
that it would happen even once or a few times makes it             would be testifying later in the case, Nemir should simply
unreasonably dangerous.” On May 22, 2002, relying on the           elicit the information from Dr. Spitz when he testified.
testimony of Cooper and discounting that of Manning, the
district court again held that the seatbelt “does not present an     The next day, when Nemir’s attorney attempted to question
inherently unreasonable risk of danger,” thereby reiterating its   Dr. Spitz about his book, the district court sustained
unwillingness to instruct the jury on Nemir’s theory of strict     Mitsubishi’s objection to the questioning, as illustrated by the
liability. See Nemir v. Mitsubishi Motors Corp., 201               following exchange:
F.Supp.2d 779, 783 (E.D.Mich. 2002).
                                                                     Nemir’s Counsel (questioning Dr. Spitz): [Your book]
   The trial was fueled by three disputed issues. First was          talks about the brain stem contusions and I’m looking at
whether Nemir was wearing his seatbelt at the time of the            the chart that Dr. Hatsell has that we all saw . . .
accident. Nemir testified generally that he almost always
wore his seatbelt while driving, and specifically that he was        Mitsubishi’s Counsel: Your Honor, I would object to
wearing it at the time of the accident. In support of Nemir’s        any questioning of this witness on the issue of brain
testimony, another of his experts, Dr. Joseph L. Burton,             injury and injury causation. Although he is qualified,
testified that cotton fibers resembling those from Nemir’s           he’s not given any testimony on direct examination on
jacket were embedded along the edge of the seatbelt; that the        injury causation, and we’re not offering him for that.
seatbelt appeared to have been stretched; and that the buckle
had “loading marks” consistent with wear. Mitsubishi                 Nemir’s Counsel: Well, I – I specifically . . .
submitted evidence indicating that Nemir’s injuries had
diminished his memory of the accident, and produced expert           Judge Feikens: If he’s not being offered for that, then
witnesses who downplayed the conclusiveness of Nemir’s               why are you going into it?
fiber evidence and surmised that Nemir’s seatbelt lacked the         Nemir’s Counsel: Because you asked me to do it, your
markings that would have appeared had it been worn during            Honor. I asked to be able to cross-examine with his book
the accident.                                                        yesterday with Dr. Hatsell, and you said the proper place
   Second was the question of the cause of Nemir’s injuries.         to do it was with this witness.
Burton testified that had he been belted, Nemir’s collision          Judge Feikens: On . . . on brain injury even though he’s
with the pillar would have been much slower, and Nemir               not being offered from that reason?
would have suffered milder injuries. Mitsubishi’s expert, Dr.
Charles Hatsell, concluded that the injuries to Nemir’s brain        Nemir’s Counsel: Your Honor, I tried to cross-examine
stem resulted from head rotation that even a fully functioning       to show this man had written—or shown that Hatsell’s
seatbelt would have failed to prevent. Through cross-
examination, Nemir’s attorney attempted to impeach Hatsell
Nos. 02-1780; 03-1228                 Nemir v. Mitsubishi       11    12     Nemir v. Mitsubishi             Nos. 02-1780; 03-1228
                                       Motor Corp., et al.                   Motor Corp., et al.

  opinion is impossible. I tried to cross-examine. You                question so that he could pinpoint the cause, Mitsubishi
  said, no, I should do it with . . .                                 claimed that it had not performed any such tests. The district
                                                                      court prohibited Nemir from introducing—in order to explain
  Judge Feikens: I’ll sustain the objection.                          why there was not more evidence of partial engagement
                                                                      during actual use—evidence that Mitsubishi had failed to test
Needless to say, the impeaching passage never reached the             the buckles flagged by its customers. And Mitsubishi’s
jury.                                                                 expert testified that it was impossible to achieve partial
                                                                      engagement in actual use.
   Third was whether the seatbelt was capable of partially
latching, such that it could malfunction during an accident.            The jury’s Verdict Form posed three questions:
Dr. Horton testified that the seatbelt buckle was unreasonably
dangerous because it allowed for “partial engagement.” But              1.    Was Nemir wearing his seatbelt at the time of the
he was unable to explain the basis for his conclusion because                 accident?
the district court prohibited Horton from testifying that he
was able, twice out of twenty attempts, to create a partial latch       2.    If yes, was the seatbelt defective?
of Nemir’s seatbelt buckle, opining that Horton’s method—in
which he manipulated the buckle at varying speeds and                   3.    If yes, was the defect the proximate cause of Nemir’s
angles—was scientifically unsound. Nemir, 200 F.Supp.2d                       injuries?
at 778. The district court also prohibited Horton from
testifying about causation, reiterating its prior concern that        The jury answered that Nemir was not wearing his seatbelt at
Horton “does not demonstrate how he arrived at his                    the time of the accident, and therefore did not reach the other
conclusion that partial latch caused Nemir’s injuries or how          questions. On July 4, 2002, the district court entered
he eliminated other possibilities, chief among which is the           judgment for Mitsubishi.
possibility that Nemir was not wearing a seat belt.” Nemir,
200 F.Supp.2d at 776. Moreover, although Federal Rule of                 On June 12, 2002, Nemir appealed, arguing that the district
Evidence 706 provides that a court-appointed witness “may             court erred in excluding portions of Horton’s testimony,
be called to testify by the court or any party,” the district court   restricting his access to customers who had filed complaints,
refused to allow Nemir to call Manning at trial.                      refusing to instruct the jury on strict liability, refusing to
                                                                      allow him to call Dr. Manning, and inhibiting his
  Taking advantage of the gaps in Horton’s testimony and the          impeachment of Dr. Hatsell. After Nemir submitted his
absence of Manning’s testimony, Mitsubishi argued to the              appellate brief, the district court ordered Nemir to post a bond
jury, among other things, that partial latching had never been        of $20,000 to secure the costs of the appeal.
demonstrated, that Horton’s testimony was “sheer
speculation,” and that “[y]ou can’t prove your case with just           In the meantime, Mitsubishi asked the district court to
the words of a hired expert.” Moreover, although the other            award it $48,000 in costs from Nemir. Pursuant to 28 U.S.C.
court-appointed witness, Cooper, had testified prior to trial         § 1920, the Clerk of the district court entered an order
that were he a manufacturer that had received complaints of           awarding $24,000, refusing to award Mitsubishi all of its
unlatching seatbelts, he would want to examine the buckles in         request for court reporter and duplication fees. Indeed, the
Nos. 02-1780; 03-1228                Nemir v. Mitsubishi      13    14    Nemir v. Mitsubishi               Nos. 02-1780; 03-1228
                                      Motor Corp., et al.                 Motor Corp., et al.

Bill of Costs Handbook states that the latter are “not                 Our prior holding that Nemir had created a triable issue as
recoverable within the discretion of the taxation clerk unless      to strict liability bound the district court. “[U]pon remand of
counsel has previously secured an order authorizing the             a case for further proceedings after a decision by the appellate
recovery of these costs,” which Mitsubishi had not.                 court, the trial court must proceed in accordance with the
Mitsubishi petitioned the district court to reinstate $21,000 of    mandate and the law of the case as established on appeal. The
the $24,000 in denied costs.                                        trial court must implement both the letter and the spirit of the
                                                                    mandate, taking into account the appellate court’s opinion and
   On February 3, 2003, we reversed the district court’s            the circumstances it embraces.” United States v. Moored, 38
setting the surety bond at $20,000, holding that a $1,000 bond      F.3d 1419, 1421 (6th Cir. 1994). As we made clear in Nemir
“will be adequate to protect the defendant’s interests.” Nemir      I, the district court was required to allow Nemir to present his
III, slip op. at 1. The day after we issued our opinion, the        strict liability theory to the jury.
district court vacated the Clerk’s award of costs and awarded
Mitsubishi the entirety of its original request—that is, $3,000        Mitsubishi maintains, however, that our prior decision did
more than even Mitsubishi had asked to be added to the              not reach this issue, contending that “[Nemir] is under the
Clerk’s initial award. Nemir separately appealed the district       mistaken belief that this Court’s opinion established the law
court’s award of costs.                                             of the case on the issue of which Maryland law standard of
                                                                    proof would apply, ‘inherently unreasonably dangerous’ strict
                        II. ANALYSIS                                liability or the risk/utility . . . balancing test. However, it is
                                                                    clear from the language of [Nemir I] that this Court did not
  Nemir asserts that the district court erred in: (1) refusing to   address that issue . . . .” Mitsubishi’s argument misrepresents
instruct the jury on Nemir’s theory of strict liability;            the repeated and unambiguous language of our prior decision.
(2) limiting Nemir’s discovery; (3) excluding an array of           We stated plainly, more than once, that Nemir had met his
evidence; and (4) awarding excessive costs to Mitsubishi.           burden on the unreasonably dangerous standard. See Nemir
                                                                    I, 6 Fed.Appx. at 276 (“Plaintiff demonstrates a triable issue
  A. Strict Liability                                               of fact with regard to the design defect condition and the
                                                                    unreasonably dangerous condition of the product.”); id. (“The
   Nemir contends that the district court’s refusal to instruct     plaintiff’s evidence could lead a reasonable jury to conclude
the jury about his theory of strict liability violated the          that the product poses an inherently unreasonable risk.”); id.
mandate that we issued in Nemir I. As we explained above,           at 277 (“[Horton’s] testimony creates a jury issue with regards
in originally granting summary judgment to Mitsubishi, the          to whether or not the Takata 52 seatbelt is ‘unreasonably
district court held that Nemir had failed to demonstrate that       dangerous’ under [Maryland law].”). The district court
the seatbelt suffered from an unreasonably dangerous “design        ignored our clear and repeated instructions regarding the
defect” that could underlie a cause of action based on strict       submission to the jury of Nemir’s theory of strict liability, and
liability. In Nemir I, we reversed and identified numerous          Mitsubishi’s argument to the contrary is plainly without
items of evidence that “demonstrate[] a triable issue of fact       merit.
with regard to the design defect condition and the
unreasonably dangerous condition of the product.” Id. at 276.        Nemir also argues that even if the strict liability instruction
                                                                    were not compelled by Nemir I, the district court erred by
Nos. 02-1780; 03-1228                Nemir v. Mitsubishi      15    16   Nemir v. Mitsubishi               Nos. 02-1780; 03-1228
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basing its strict liability decision on the testimony of Cooper,    necessary in this case to protect the defendants from being
given that his employer counted both Mitsubishi and Takata          unduly burdened and unfairly prejudiced if the plaintiffs were
among its past clients, and by misapplying the law governing        able to . . . interview these customers ex parte.”
unreasonably dangerous products. Given that the district
court’s decision to preclude the strict liability instruction was     Yet the district court offered no relevant explanation of how
erroneous on a more basic level—that it violated our mandate        Mitsubishi would be burdened or prejudiced by Nemir’s
in Nemir I—we need not address these arguments.                     interviewing these consumers, nor is one apparent.
                                                                    Mitsubishi argues that the restrictions protected its business
  B. Discovery                                                      interests by shielding its customers from damaging innuendo
                                                                    about the safety of its products. For support, Mitsubishi relies
  Nemir’s claims that the district court improperly limited         upon two district court cases: Commodity Futures Trading
discovery also descend from our prior review of this case. In       Commission v. Rosenthal & Co., 74 F.R.D. 454 (N.D.Ill
Nemir I, as part of our reversal of the district court’s grant of   1977), and Vokswagen v. Westburg, 260 F.Supp. 636 (E.D.Pa.
summary judgment, we noted that “the district court                 1966). Neither supports Mitsubishi’s argument; the plaintiffs
perfunctorily disregarded hundreds of pages of consumer             in each of those cases had demanded unfettered access to all
seatbelt complaints. This evidence was released to [Nemir]          of the defendant’s customers, even those who had never
in the eleventh hour, after years of discovery disputes over        complained about any defects in the defendant’s products. In
whether or not such complaints were discoverable material.”         those situations, the courts hesitated to authorize fishing
Nemir I, 6 Fed. Appx. at 275. Indeed, we explained that             expeditions that might have tainted the defendants’
“[t]his issue potentially impacts the safety of millions of         relationships with their customers.
American consumers and [Nemir] should be granted
sufficient time to fully investigate [his] case.” Id. at 276.          Conversely, the customers that Nemir sought to contact had
Nemir argues that the district court failed to do so in a number    already complained to Mitsubishi of seatbelt malfunctions.
of ways.                                                            The relevance of these customers was already clear, and
                                                                    interviews by plaintiff’s counsel would likely have served as
  1.   Protective Order Limiting Discovery                          little more than a reminder of the seatbelt problems that the
                                                                    consumers themselves had perceived and articulated.
   Nemir contends that the district court erred in prohibiting      Mitsubishi’s concerns, then, are speculative, and mere
Nemir’s counsel from unilaterally contacting any of                 speculation is insufficient to warrant such stringent limits on
Mitsubishi’s complaining consumers. Federal Rule of Civil           pretrial investigation. See, e.g., Gottstein v. National
Procedure 26(c) authorizes such a protective order only under       Association for the Self Employed, 186 F.R.D. 654, 659
circumstances “which justice requires to protect a party or         (D.Kan. 1999) (“Defendants also suggest that they have a
person from annoyance, embarrassment, oppression, or undue          legitimate business interest in preventing unrestricted contact
burden or expense,” the potential for which must be                 with their customers . . . . They present nothing but
illustrated with “a particular and specific demonstration of        supposition and conjecture, however, to support finding
fact, as distinguished from stereotyped and conclusory              future communications of counsel for plaintiffs will harm
statements.” Gulf Oil Co. v. Bernard, 452 U.S. 89, 102 n. 16        their reputation or profits.”); Multi-Tech Systems v. Hayes
(1981). The district court asserted that the order “was             Microcomputer Products, Inc., 800 F.Supp. 825 (D.Minn.
Nos. 02-1780; 03-1228                  Nemir v. Mitsubishi        17    18    Nemir v. Mitsubishi              Nos. 02-1780; 03-1228
                                        Motor Corp., et al.                   Motor Corp., et al.

1992) (“Granting [plaintiff] access to the customers of                 188 of the consumer complaints, rather than all 29,000.
[defendant] that it has already discovered during depositions           Mitsubishi argued, and the district court agreed, that our
. . . will level the parties playing field . . . . The court declines   decision in Nemir I restricted Nemir to investigating only the
to adopt [guidelines that the parties could follow in contacting        188 complaints that we explicitly mentioned in our decision.
each others customers] because guidelines might place too               But nowhere did our decision limit Nemir to those 188
great a burden on the parties’ right to garner evidence in              incidents. Rather, in describing the relevance of the consumer
support of the prosecution or defense of the claims in this             complaints to establishing a dispute of material fact, we noted
case.”); cf. Williams v. Chartwell Financial Services, Ltd.,            that “[a] complete review of the record indicates that
204 F.3d 748 (7th Cir. 2000) (“The plaintiffs have a right to           phraseology analogous to ‘intermittent partial latching’
contact members of the putative class . . . . [t]he district            occurred 188 times in the customer complaints submitted as
court’s decision as to [a] protective order must involve a              evidence. To summarily dismiss this evidence without
careful balancing of the potential for abuse created by the             affording the plaintiff time to investigate and further elicit
class action and the right of the plaintiffs to contact potential       information regarding the exact nature of these incidents is
class members.”).                                                       clear error.” Nemir, 6 Fed.Appx. at 276.
  Moreover, the burden this protective order imposed on                    Mitsubishi fails to mention that the reason we singled out
Nemir’s investigation was considerable. Rather than being               188 complaints in Nemir I was that the 188 complaints were
able to conduct informal interviews, Nemir was required to              the only ones in our appellate record, and served as a sample
coordinate each and every witness interview with Mitsubishi,            of the larger set of documents. In other words, we cited the
as well as bear the cost, in both hours and dollars, of formal          188 documents as examples of the 29,000-plus documents
depositions. Perhaps even more importantly, Nemir was                   that we deemed clearly relevant to the case and worthy of
robbed of the privacy of his attorney’s trial preparation. As           further investigation. Mitsubishi’s argument that “[Nemir]
the Supreme Court declared when refusing to compel the                  has given this Court no good reason to set aside its original
discovery of counsel’s notes stemming from his ex parte                 ruling and expand investigation discovery even further”
interview of witnesses, “the general policy against invading            attempts to concoct a holding that is not even remotely
the privacy of an attorney’s course of preparation is so well           discernible from our opinion. See, e.g., First National Bank
recognized and so essential to an orderly working of our                of Cincinnati v. Pepper, 547 F.2d 708, 714 (2d Cir. 1976)
system of legal procedure that a burden rests on the one who            (Friendly, J.) (“Such a literal application of the language from
would invade that privacy.” Hickman v. Taylor, 329 U.S.                 this court’s previous opinion . . . is, we think, not at all what
495, 512 (1947). If Mitsubishi’s unsubstantiated fears of               the earlier [panel in this case] had in mind.”); United States v.
prejudice justified a protective order, such orders would be            Scheipe, 474 F.2d 720, 721 (3d Cir. 1973) (“We are not
justified in virtually every case—a result that would obliterate        prepared to give literal efficacy to isolated excerpts from
the essential principle articulated by the Court.                       language of that opinion which would otherwise [contradict
                                                                        its holding]”); Continental Motors Corp. v. Continental
  2.   Limitation to 188 Complainants                                   Aviation Corp., 375 F.2d 857, 861-62 (5th Cir. 1967)
                                                                        (reversing decision in which district court “gave too much
  Nemir further argues that the district court misinterpreted           uncritical and literal significance to [an earlier decision]”).
our decision in Nemir I when it limited him to investigating
Nos. 02-1780; 03-1228                Nemir v. Mitsubishi       19    20    Nemir v. Mitsubishi              Nos. 02-1780; 03-1228
                                      Motor Corp., et al.                  Motor Corp., et al.

  One caveat remains. When the district court initially              sanctions . . . is a question for the district court in the first
limited Nemir to discovery of the 188 incidents, it gave             instance. We are not equipped to make a fact finding about
Nemir the option of coming back to the district court to             [the defendant’s] alleged bad faith and failure to comply with
request that it be allowed to investigate additional complaints.     discovery obligations.” (internal citation omitted)); cf. Mutual
Nemir never did so, and normally this would mean that he             Service Insurance Co. v. Frit Industries, Inc., 358 F.3d 1312,
waived his opportunity to interview the other complainants.          1326-27 (11th Cir. 2004) (“Without explanation, it is
However, because we are already remanding for new trial,             impossible for us to determine whether or not the district
and because our decision has overturned a separate discovery         court acted within the bounds of its discretion.”).
restriction imposed by the district court, there is no reason to
deny Nemir the opportunity to investigate further.                     Mitsubishi also argues that our decision in Nemir I held that
                                                                     no sanctionable discovery violation occurred, such that a
  3.   Refusal to Sanction Mitsubishi                                contrary determination is now precluded by res judicata. In
                                                                     support, Mitsubishi points to the following passage from
  Nemir argues that the district court erroneously failed to         Nemir I: “[T]he district court perfunctorily disregarded
sanction Mitsubishi for obstructing discovery. Federal Rule          hundreds of pages of consumer seatbelt complaints. This
of Civil Procedure 37(b)(2) allows a district court to impose        evidence was released to the plaintiff in the eleventh hour,
sanctions against a party that “fails to obey an order to            after years of discovery disputes over whether or not such
provide or permit discovery.” Nemir argued that his                  complaints were discoverable material.”            Nemir I,
discovery requests included the 29,000 consumer complaints,          6 Fed.Appx. at 275. According to Mitsubishi, our references
but that Mitsubishi persistently maintained that it had no           to “years of discovery disputes” constituted a “holding” that
documents corresponding to his request. Nemir also asserts           the withholding of the documents was the result of a good-
that he was prejudiced by the delayed production, arguing that       faith disagreement, rather than misconduct.
the opportunity to contact many of these potential witnesses
evaporated during the delay, although he is noticeably vague           This argument is baseless. Our decision in Nemir I did not
about the reasons for this: did most of the potential witnesses      purport to address any of the issues regarding sanctions or
move in the interim? But see Computer Task Group, Inc. v.            discovery misconduct. That we characterized, in passing, the
Brotby, 364 F.3d 1112, 1116 (9th Cir. 2004) (per curiam)             belated disclosure as coming “after years of discovery
(“[F]ailure to produce documents as ordered is considered            disputes” does not mean that Mitsubishi’s hands were clean:
sufficient prejudice.” (internal quotations and alterations          the fact that there were disputes does not automatically mean
omitted)).                                                           that both sides in the dispute were playing fairly. (If
                                                                     anything, the tenor of our opinion was critical of Mitsubishi,
  Although Mitsubishi contends that the district court               noting that Mitsubishi had failed to disclose the documents’
expressly denied Nemir’s motion for sanctions, the record            existence until the “eleventh hour” and suggesting that
clearly reveals that the district court stayed consideration of      Mitsubishi withheld otherwise discoverable material by
the motion, never to return to it. The district court’s failure to   excluding any documents that did not contain a set of
rule on the motion requires that we remand for consideration         legalistic magic words. See id. at 275-76.)
anew. See Bacou Dalloz USA, Inc. v. Continental Polymers,
Inc., 344 F.3d 22, 31 n.6 (1st Cir. 2003) (“Whether to impose
Nos. 02-1780; 03-1228                Nemir v. Mitsubishi       21    22   Nemir v. Mitsubishi              Nos. 02-1780; 03-1228
                                      Motor Corp., et al.                 Motor Corp., et al.

   As for whether evidence of any discovery misconduct               release button, and by improper or incomplete insertion,” id.
should have been admitted at trial, we cannot evaluate that          at 274, we held that
claim without first knowing whether any discovery
misconduct occurred, and whether and to what extent any                an expert witness’ conclusion regarding all admissible
misconduct prejudiced Nemir. To give one example, it may               evidence need not eliminate all other possible causes of
be the case that if Nemir can show that Mitsubishi’s delays            injury in order to be admissible on the issue of causation.
prevented him from contacting a large number of relevant               Accordingly, Horton could use this evidence to testify
witnesses who could testify to the partial-latching                    that the partial latch of Dr. Nemir’s seatbelt caused the
phenomenon in their own seatbelts, then evidence of such               damage in question. While other possibilities exist with
delay would be a proper rebuttal to Mitsubishi’s arguments             regards to causation, the fact that several possible causes
that Nemir has been unable to demonstrate that partial-                might remain uneliminated only goes to the accuracy of
latching actually occurs in real life. There may (or may not)          the conclusion, not the soundness of the
also be other examples of prejudice, or other possible                 methodology. . . . The district court, by requiring
remedies. All of this is for the district court to consider in the     “specific knowledge of the precise physiological cause”
first instance in conjunction with Nemir’s motion for                  of the accident held the expert up to entirely too strict a
discovery sanctions.                                                   standard when considering the admissibility of their
                                                                       testimony. The testimony of Horton, establishing
  C. Evidentiary Restrictions                                          causation based upon the above referenced facts, would
                                                                       adequately shoulder the Michigan burden of proof that
  Nemir highlights an array of allegedly erroneous                     plaintiff show a reasonable likelihood . . . that his
evidentiary exclusions, contending that the district court:            explanation of the injury is correct.
(1) improperly restricted the testimony of Horton;
(2) unlawfully prevented Manning from testifying at trial;           Id. at 275 (emphasis added, internal quotations and citations
(3) mistakenly prohibited evidence about Mitsubishi’s failure        omitted).
to investigate other similar consumer complaints; and
(4) hamstrung Nemir’s ability to impeach one of Mitsubishi’s           At various points in the opinion, moreover, we identified
expert witnesses.                                                    the evidence that would permit Horton to reach his
                                                                     conclusions. We noted, for instance, that
  1.   Horton Testimony
                                                                       [d]uring his deposition, Horton testified that he had
  Nemir argues that the district court erred in prohibiting            inspected the Nemir seatbelt, and while he did not
Horton from testifying about: (1) the cause of Nemir’s                 “measure any loads,” he did “check it for partial
injuries; and (2) his tests on Nemir’s buckle. As to the               latching.” . . . This document clearly presents evidence
former, Nemir submits that the district court’s barring Horton         which would allow Horton to testify that Nemir’s
from testifying about the cause of Nemir’s injuries                    seatbelt could be put into a position of partial latch, and
contravened Nemir I. After noting that “Horton tested                  that as such, the seatbelt was defectively designed.
Nemir’s belt buckle and determined that it could be placed
into a state of partial engagement by slightly depressing the
Nos. 02-1780; 03-1228                Nemir v. Mitsubishi      23    24    Nemir v. Mitsubishi              Nos. 02-1780; 03-1228
                                      Motor Corp., et al.                 Motor Corp., et al.

Id. at 271-72 (internal quotations and citations omitted). See      understand the evidence or to demonstrate a fact in issue, a
also id. at 274 (“Horton’s examination of the buckle and the        witness qualified as an expert by knowledge, skill,
load marks on the jacket could lead a reasonable jury to            experience, training, or education, may testify thereto in the
conclude that the seatbelt remained attached until impact,          form of an opinion or otherwise.” In Daubert v. Merrell Dow
when it released and retracted, causing damage to the               Pharmaceuticals, Inc., 509 U.S. 579, 597 (1993), the
jacket.”). On remand, we instructed the district court that         Supreme Court held that before admitting expert scientific
Horton’s testimony regarding causation was admissible.              testimony, the district court must determine that the testimony
                                                                    “rests on a reliable foundation and is relevant to the task at
  Despite our mandate, the district court again ruled that          hand.” Daubert applies “not just to scientific evidence but to
Horton “cannot testify that partial latching [was] the sole         all expert testimony, including testimony based on technical
cause of Nemir’s injuries [because he] does not demonstrate         and other specialized knowledge.” Clark v. Chrysler Corp.,
how he arrived at his conclusion . . . or how he eliminated         310 F.3d 461, 466 (6th Cir. 2002), vacated on other grounds,
other possibilities, chief among which is the possibility that      Chrysler Corp v. Clark, 124 S.Ct. 102 (2003). Because we
Nemir was not wearing a seat belt.” Nemir, 200 F.Supp.2d at         review the screening of expert evidence for an abuse of
776. Because we plainly held in Nemir I that the causation          discretion, “the district court has wide latitude to determine
testimony was admissible, the district court’s refusal to admit     the admissibility of expert testimony under Daubert”—but
this testimony contravened our explicit mandate.                    “its discretion is not unbridled.” Hardyman v. Norfolk &
                                                                    Western Railway Co., 243 F.3d 255, 267 (6th Cir. 2001).
  Similarly, the district court prohibited Horton from
testifying about his testing of the buckle. Horton’s                  The district court found that Horton’s method—in which he
testimony—that twice out of twenty attempts, using                  manipulated the buckle at varying speeds and angles—was
purposeful manipulation, he was able to cause Nemir’s buckle        scientifically unsound because “[n]o reasonable driver
to unlatch—was a critical basis for our decision permitting         purposefully manipulates the buckle at different speeds and
Horton to present his conclusions about causation. Although         different angles to achieve a state of partial latch as Horton
we did not explicitly state that “Horton’s description of his       does.” Yet the point of the purposeful manipulation was to
testing of Nemir’s buckle is admissible at trial,” we could not     show that partial latching could occur under certain
have permitted Horton’s causation testimony without                 circumstances, not to show directly that Nemir’s buckle
permitting him to present the bases for his conclusions. See        partially latched during the accident—given the infinite
Jones v. Lewis, 957 F.2d 260, 262 (6th Cir. 1992) (“[T]he trial     possible variations, it would have been virtually impossible
court may consider [only] those issues not decided expressly        to determine the velocity and angle with which Nemir had
or impliedly by the appellate court or a previous trial court.”)    actually buckled his belt on the day in question. Cf. Clark,
(emphasis added).                                                   310 F.3d at 473 (“[I]t is not necessary to prove, as Chrysler
                                                                    argues, that the prior accidents involved a vehicle identical to
  Even if Nemir I did not directly foreclose the district court’s   the one driven by [plaintiff] or that all of the circumstances of
decision to exclude Horton’s testing of the buckle, the             the accident are identical.”). That most of the combinations
exclusion was nonetheless clearly erroneous. Federal Rule of        did not produce partial latching might affect how heavily the
Evidence 702 provides that “[i]f scientific, technical, or other    jury weighs the evidence, but not whether it should be
specialized knowledge will assist the trier of fact to              admitted.
Nos. 02-1780; 03-1228               Nemir v. Mitsubishi     25    26     Nemir v. Mitsubishi            Nos. 02-1780; 03-1228
                                     Motor Corp., et al.                 Motor Corp., et al.

   This purpose was narrow, but vital to Nemir’s case.            52 buckle — can partial latch in a manner that’s
Although Horton was permitted to testify more generally as        representative of actual use beyond his sheer speculation.”
to his conclusion that the buckle was capable of partial          Reinforcing the harm to Nemir’s case caused by the
latching, Mitsubishi’s central refrain to the jury when           prohibition, Mitsubishi argued that “[t]his is serious case.
disputing the buckle’s propensity to partially latch was that     You can’t prove your case with just the words of a hired
Horton was just spouting words that were uncorroborated by        expert . . . Another federal court, we brought out, rejected
any actual test or demonstration. Thus, before Nemir could        Mr. Horton’s testimony for something called, by the court,
convince the jury that partial latching occurred during the       parlor tricks. I submit that surely that is why he didn’t
accident, he had to show the jury that partial latching was       attempt to demonstrate anything here.” Of course, Horton had
something that could have happened during the accident: in        attempted to demonstrate something, and the district court’s
other words, that his buckle was capable of partially latching.   exclusion of this demonstration was error.
Merely being allowed to announce his conclusion, sans
support, was unlikely very helpful to Horton’s testimony or         2.    Manning Testimony
Nemir’s case. See Rosen v. Ciba-Geigy Corp., 78 F.3d 316,
319 (7th Cir. 1996) (“[A]n expert who supplies nothing but a        Nemir also sought to present testimony from court
bottom line supplies nothing of value to the judicial process     appointed expert Lindley Manning, who, like Horton, was
. . . .”). And because an individual driver will inevitably       able to cause Nemir’s buckle to partially latch. Federal Rule
buckle his seatbelt at varying angles and with varying speeds,    of Evidence 706 provides that a court appointed witness
purposeful manipulation would have been the only way to           “shall advise the parties of the witness’ findings, if any; the
demonstrate partial latching in a laboratory setting. See         witness’ deposition may be taken by any party; and the
Hardyman, 243 F.3d at 262 (finding abuse of discretion when       witness may be called to testify by the court or any party.”
district court demanded a method of evaluation that was           (emphasis added) Yet the district court, without explanation,
scientifically impossible); Guild v. General Motors Corp., 53     prohibited Nemir from introducing Manning’s testimony.
F.Supp.2d 363, 366 (W.D.N.Y. 1999) (“[P]erfect identity           Mitsubishi nevertheless argues that the “plain language” of
between experimental and actual conditions is neither             Rule 706 supports the district court’s decision. Yet the plain
attainable nor required.”). Indeed, both of the experts that      language of the rule could hardly be more clear in its support
were appointed by the district court used the same technique      of Nemir’s position: either the court or any party “may” call
as did Horton to test the buckle, a technique that was            the witness to testify. The rule simply does not condition a
appropriate for the conclusion that Horton was asserting.         party’s doing so on the district court’s approval, nor does it
                                                                  maintain merely that the district court “may allow either party
  The exclusion of these tests was exploited by Mitsubishi.       to call the witness.”
During closing argument, Mitsubishi argued that “they
haven’t shown partial latching to you except in a drawing.           Manning’s testimony would have been important to Nemir,
They haven’t shown partial latching of an old buckle, a new       for several reasons. First, it would have corroborated
buckle, a used buckle, Dr. Nemir’s buckle, or any TK 52           Horton’s conclusions that the Nemir buckle was capable of
buckle.” Mitsubishi went on to argue that “[i]t’s never been      partially latching and had been demonstrated to partially
demonstrated. It’s never been demonstrated. All you have is       latch. Given that Manning was court-appointed, rather than
Horton’s words of this. He has no basis to conclude the TK        hired by Nemir, a jury would likely have considered his
Nos. 02-1780; 03-1228                 Nemir v. Mitsubishi    27   28     Nemir v. Mitsubishi             Nos. 02-1780; 03-1228
                                       Motor Corp., et al.               Motor Corp., et al.

testimony to be more credible than that of Horton, whom           v. Blake, 515 S.E.2d 166, 169 (Ga. 1999) (“Fully aware that
Mitsubishi derided as a “hired gun.” Second, Manning’s            the issue was why did the seatbelt not restrain plaintiff, if it
testimony that even infrequent partial latching may constitute    did not do so, GM apparently tactically decided not to
a serious defect would have bolstered the weight afforded to      conduct a fuller and more complete investigation of the
Horton’s research, which found partial engagement in two out      apparatus. Defendant should not be permitted to avoid
of twenty attempts. The erroneous exclusion of this evidence      learning the facts by lack of thoroughness and then claim
again undercut Nemir’s case.                                      surprise.”); Daniel v. Indiana Mills & Manufacturing, Inc.,
                                                                  103 S.W.3d 302, 315 (Mo. App. 2003) (“Plaintiff was
  3.   Mitsubishi’s   Failure    to    Investigate   Consumer     permitted, in rebuttal, to use [defendant’s crash test videos] to
       Complaints                                                 demonstrate that initial unlatching could occur.”); Wiitala v.
                                                                  Ford Motor Co., 2001 WL 1179610 at *7 (Mich. App. Oct. 5,
  Nemir argues that the district court erred in prohibiting him   2001) (“We are also not persuaded by defendant’s argument
from introducing evidence about Mitsubishi’s alleged failure      that the test documents uncovered after the violation were
to properly investigate seatbelt-related complaints it had        irrelevant because all but one involved buckles other than that
received from other consumers. Evidence of Mitsubishi’s           found in plaintiff’s car . . . . given that defendant took the
failure to investigate would probably be inadmissible to prove    position at trial that inertial unlatching is simply a ‘parlor
directly the proposition that the buckles are capable of          trick,’ we believe the evidence was relevant in that it directly
partially latching. And although such evidence would              countered this assertion . . . .”).
probably be admissible to support a case for punitive
damages, see Clark, 310 F.3d at 481 (upholding award of             If, during the new trial, Mitsubishi argues that the absence
punitive damages because although aware of possible safety        of real-life incidents suggests that partial-latching is a
problems with pickup truck, Chrysler failed to perform            laboratory-only phenomenon, Nemir must be permitted to
relevant tests), Nemir’s punitive damages claim has been          introduce evidence that the absence of real-life incidents
dismissed.                                                        might also signal only that Mitsubishi failed to investigate
                                                                  such incidents.
  But at the first trial, Mitsubishi opened the door:
Mitsubishi argued that Nemir was unable to unearth any              4.    Impeachment Evidence
examples of partial-latching occurring in real life. In
response, it would have been important for the jury to know         Finally, Nemir seeks reversal based on the district court’s
that one of the reasons that he had been unable to deliver such   interference with his impeachment of Dr. Hatsell. As we
evidence was that Mitsubishi had failed to perform                explained above, when Nemir attempted to impeach Hatsell
appropriate investigations and/or testing that could have         on cross-examination by confronting him with an excerpt
yielded such evidence (with Cooper’s testimony confirming         from a book that had been co-authored by Spitz, another
that examination of the buckles would have been appropriate).     expert retained by Mitsubishi, the district court instructed
Cf. Beck v. Haik, — F.3d — (6th Cir. July 29, 2004) (“A           Nemir to save such questioning for Spitz’s testimony. When
party may also be entitled to special instructions if he can      Nemir questioned Spitz about the book, the district court
raise an issue of fact as to whether a party has failed to        ignored its prior instructions and prohibited such questioning
preserve relevant evidence.”); cf. also General Motors Corp.      as beyond the scope of his testimony. In the end, Nemir was
Nos. 02-1780; 03-1228                Nemir v. Mitsubishi      29    30    Nemir v. Mitsubishi              Nos. 02-1780; 03-1228
                                      Motor Corp., et al.                 Motor Corp., et al.

altogether prohibited from introducing this concededly                D. Harmless Error
relevant impeachment evidence.
                                                                       Mitsubishi argues that any errors made at trial were
  Mitsubishi’s defense of the district court’s decision is          harmless, given that the errors influenced only the jury’s
spurious. First, Mitsubishi argues that the district court          determination whether the seatbelt functioned properly,
correctly refused to allow the impeachment of Dr. Hatsell           whereas the jury found that Nemir had not been wearing his
with the book authored by Dr. Spitz because “there is no            seatbelt at all. Nemir argues, in contrast, that the jury’s
indication from the record that plaintiff was doing anything        determination that he was not wearing his seatbelt was
other than attempting to elicit an opinion from Dr. Hatsell as      infected by the errors regarding the effectiveness of the
to the possible opinions of Dr. Spitz regarding brain injuries      seatbelt. In other words, posits Nemir, if the jury did not
caused by rotational forces applied to the brain.” This is          believe that the seatbelt was ever capable of partially latching,
technically correct but highly misleading: Dr. Spitz’s              it would necessarily have attributed Nemir’s injuries to his
published opinions about brain injuries were offered to             not having worn his seatbelt at all. When reviewing whether
impeach the contrary conclusions of Hatsell, not to have            a claim that an error was harmless, we must reverse “[i]f we
Hatsell comment on Spitz’s upcoming testimony. Nemir                do not have a fair assurance that the trial’s outcome was not
sought to impeach Dr. Hatsell with the writings of Dr. Spitz;       altered by error.” Beck, — F.3d at —.
his appearance on the witness list was beside the point.
                                                                      In arguing that Nemir was not wearing his seatbelt on the
   Second, Mitsubishi argues that even though the district          day of the accident, Mitsubishi relied primarily on evidence
court prohibited Nemir from impeaching Hatsell with the             unrelated to the buckle. During closing argument, Mitsubishi
writings of Spitz on the grounds that Nemir would have a            argued that Nemir’s memory of the accident was suspect,
chance to elicit the impeaching information directly from           thereby casting doubt on his claim that he was indeed wearing
Spitz, “the district court reasonably and properly sustained an     the seatbelt. Moreover, Mitsubishi pointed to an array of
objection to this collateral inquiry because it was not a subject   physical evidence, independent of the buckle, which it argued
of Dr. Spitz’s testimony in this case.” Mitsubishi again            showed that Nemir was not wearing his seatbelt, and also
flagrantly misrepresents the record. Whether the questions          argued that the evidence of seatbelt-wearing introduced by
targeted Spitz’s testimony was irrelevant: the questions were       Nemir did not show otherwise. It is clear, then, that the jury
designed not to impeach Spitz, but rather to impeach Hatsell        reasonably could have found that Nemir was not wearing his
by evincing a contrary opinion. The only reason that Nemir          seatbelt at the time of the accident, and could have done so
was impeaching Hatsell with Spitz’s testimony—rather than           even if it believed that Nemir’s buckle had the potential to
confronting Hatsell directly with the treatise written by           partially unlatch.
Spitz—was that the district court ordered Nemir to proceed
this way.                                                             Yet the jury was not required to consider only arguments
                                                                    that the parties raised during summation. It is a familiar part
  Thus, Nemir was erroneously prevented from introducing            of any judge’s instructions to a jury that it is bound by the
relevant impeachment evidence. And this impeachment                 evidence, not by counsel’s closing arguments. See Federal
evidence might have been particularly valuable to Nemir,            Jury Practice and Instructions, Civil, 3 FED . JURY PRAC. &
given that it came from Mitsubishi’s own expert.                    INSTR. § 101.02 (5th ed.) (“After the evidence is presented,
Nos. 02-1780; 03-1228               Nemir v. Mitsubishi     31    32    Nemir v. Mitsubishi              Nos. 02-1780; 03-1228
                                     Motor Corp., et al.                Motor Corp., et al.

the parties’ lawyers make closing arguments explaining what       trees”) until they find one that can account for the calamity.
they believe the evidence has shown. What is said in the          Sherlock Holmes observed that ‘when you have eliminated
closing arguments is not evidence.”). Although Nemir’s            the impossible, whatever remains, however improbable, must
argument would certainly be stronger if Mitsubishi had more       be the truth.’ Courts need not disdain a method that both
frequently argued that the lack of seatbelt deficiency was        engineers and detectives find useful.” Bammerlin v. Navistar
itself proof that Nemir was not wearing his seatbelt, that        Int’l Transportation Corp., 30 F.3d 898, 902 (7th Cir. 1994)
Mitsubishi’s counsel did not stress this argument does not        (Easterbrook, J.) (internal citation omitted).
mean that the jury did not consider it.
                                                                     Our concern that the errors were not harmless is heightened
   In any event, during the opening statement, Mitsubishi told    by the case of Babcock v. General Motors Corp., 299 F.3d 60,
the jury that “at the end of the case, you must decide [whether   62 (1st Cir. 2002), a case in which the plaintiff alleged that
Nemir] engaged in the very difficult machinations that the        his seatbelt—due to the same partial-latching phenomenon
evidence will show are necessary to cause partial latching or     alleged by Nemir—unlatched during an accident. Like our
partial engagement, or that he simply didn’t put his belt on.”    case, the plaintiff in Babcock had to convince the jury both
Given that an opening statement is “an outline to help [the       that the driver had been wearing his seatbelt and that the
jury] understand what each party expects the evidence to          seatbelt was defective. As to the latter, the plaintiff was
show,” id., the jury could very well have viewed the evidence     bolstered by the testimony of an expert who had tested the
at trial in light of the either-or framework presented to it by   driver’s buckle. See id. at 68. Although the evidence that the
Mitsubishi’s opening statement. And if the jury did view the      plaintiff was wearing a seatbelt was arguably weaker than it
evidence this way, deficiencies in evidence about the buckle’s    was in our case—the plaintiff’s case was based only on
malfunction could have led the jury to conclude that the          testimony about the driver’s habit of always wearing his
seatbelt simply could not have malfunctioned, compelling the      seatbelt, whereas Nemir also had some supportive physical
conclusion that Nemir was not wearing it.                         evidence—the jury found both that the driver was wearing his
                                                                  seatbelt and that the seatbelt was defective. See id. at 66. Of
  Although we are not to presume that a jury disregarded the      course, for a host of reasons, this does not compel the
district judge’s instructions when answering the questions in     conclusion that in our case, the jury’s determination whether
a special verdict form, see Chute v. Roebuck and Co., 143         Nemir wore his seatbelt was affected by the lack of evidence
F.3d 629, 632 (1st Cir. 1998), we need presume no juror           regarding the efficacy of the buckle. But Babcock does
malfeasance to conclude that the jury’s views about the           reinforce our conclusion that, as a matter of logic, erroneous
buckle’s reliability may have influenced its determination that   evidentiary rulings pertaining to one question had the
Nemir was not wearing his seatbelt. As a matter of logic, the     potential to affect the jury’s resolution of the other.
jury could have reasoned that: (1) The only way Nemir could
have received his injuries if he was wearing his seatbelt was        Nor does Grimes v. Mazda North American Operations,
if the seatbelt was defective; (2) the seatbelt was not           355 F.3d 566 (6th Cir. 2004), suggest otherwise. In Grimes,
defective; therefore (3) Nemir was not wearing the seatbelt.      a case based on similar facts, we held that any error that might
As the Seventh Circuit put it, when reviewing a jury’s verdict    have arisen from the exclusion of evidence about prior
in a seatbelt case with similar facts, “[e]ngineers trying to     accidents involving defective seat belt latches was harmless,
understand a disaster often follow causal chains (“failure        because “[t]he jury returned a special verdict that plaintiff was
Nos. 02-1780; 03-1228                Nemir v. Mitsubishi      33    34    Nemir v. Mitsubishi               Nos. 02-1780; 03-1228
                                      Motor Corp., et al.                 Motor Corp., et al.

not wearing her seatbelt and that this, not design defect, may                           III. CONCLUSION
have been a cause of her injury.” Id. at 573. Yet in Grimes,
the plaintiff never argued to us that one set of errors affected       The judgment of the district court is REVERSED, the
the jury’s analysis of another question, such that the question     award of costs VACATED, and the case REMANDED for
before us in today’s case was simply not before us in Grimes.       a new trial. Finally, the case is to be assigned to a different
“Questions which merely lurk in the record, neither brought         district judge for all further proceedings in this case. To
to the attention of the court nor ruled upon, are not to be         minimize confusion about the required course upon remand,
considered as having been so decided as to constitute               we summarize the specifics of our decision: (1) Nemir should
precedents.” Webster v. Fall, 266 U.S. 507, 511 (1925). See         have been permitted a reasonable opportunity to contact, free
also United States v. Rivera-Guerrero, — F.3d — (9th Cir.           of the previous restrictions, the other consumers who filed
Jul. 20, 2004) (relying on quoted language). In any event, the      complaints with Mitsubishi; (2) the district court should have
evidence pertaining to seatbelt wearing was far more one-           ruled on Nemir’s motion for sanctions based on Mitsubishi’s
sided in the defendant’s favor in Grimes, given that the            alleged violations of discovery rules; (3) Nemir should have
plaintiff had told an emergency technician and two nurses that      been permitted to present his strict liability theory to the jury;
she had not been wearing her seatbelt. Thus, even if we had         (4) Horton should have been permitted to testify both as to
expressly considered such an argument in Grimes, the facts in       causation and to his testing of Nemir’s buckle; (5) Nemir
the present case much more strongly suggest that the errors         should have been permitted to call Drs. Cooper and/or
affected the trial’s outcome.                                       Manning to testify at trial; (6) Nemir should have been
                                                                    permitted to impeach the testimony of Dr. Hatsell with the
  Ultimately, because we simply do not know whether the             writing and/or testimony of Dr. Spitz; and (7) Nemir should
errors pertaining to the functioning of the seatbelt affected the   have been permitted to offer, in response to Mitsubishi’s
jury’s determination of whether Nemir was wearing the               arguments that partial-latching has never happened in the real
seatbelt, we cannot say with confidence that the errors at trial    world, evidence that it declined to perform tests when alerted
were harmless.                                                      by consumers of the potential for its buckles to unlatch.
  E. Costs
  Mitsubishi challenges the costs awarded by the district
court to Mitsubishi. Under Federal Rule of Civil Procedure
54(d)(1), “costs other than attorneys’ fees shall be allowed as
of course to the prevailing party.” Because our reversal of the
judgment for Mitsubishi strips it of its status as the
“prevailing party,” the district court’s award of costs is set
aside.
