RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 Grimes, et al. v. Mazda North No. 01-6305 ELECTRONIC CITATION: 2004 FED App. 0013P (6th Cir.) Am. Operations, et al.
File Name: 04a0013p.06
Kentucky, for Appellees. ON BRIEF: Lance W. Turner, Thomas E. Carroll, CARROLL LAW OFFICES, Monticello, UNITED STATES COURT OF APPEALS Kentucky, for Appellant. Charles E. English, Jr., David W.
FOR THE SIXTH CIRCUIT Anderson, ENGLISH, LUCAS, PRIEST & OWSLEY, _________________ Bowling Green, Kentucky, for Appellees.
_________________
SHARON RANELL GRIMES, X Plaintiff-Appellant, - OPINION - _________________ - No. 01-6305
v. - MERRITT, Circuit Judge. This products liability action > presents an appeal from a jury verdict in favor of defendants ,
MAZDA NORTH AMERICAN Mazda and Ford and against plaintiff Sharon Grimes after a -
OPERATIONS; FORD MOTOR rollover truck accident in Kentucky left Grimes a -
quadriplegic.1 She alleges that two defects in the truck COMPANY , -
caused her injuries: (1) the truck’s design gave it a high Defendants-Appellees. - propensity to rollover under reasonably foreseeable -
circumstances, and (2) the seat belt unlatched during the
N
accident. On appeal, Grimes contends that the district court Appeal from the United States District Court did not have proper jurisdiction over the claims, made for the Western District of Kentucky at Bowling Green. erroneous evidentiary rulings and gave erroneous jury No. 97-00095—Thomas B. Russell, District Judge. instructions on apportionment of damages. Specifically, she raises the following issues: (1) the district court should have Argued: September 11, 2003 remanded the case to the state court because it no longer had subject-matter jurisdiction over the case when the Decided and Filed: January 13, 2004 Commonwealth of Kentucky was added as a party because (a) the court’s diversity jurisdiction was destroyed and (b) the Before: MERRITT, GILMAN, and SUTTON, Circuit Commonwealth is immune from suit under the Eleventh Judges. Amendment; (2) the trial court erred in instructing the jury on apportionment of fault (a) against the Commonwealth of _________________ Kentucky because the Commonwealth is immune from COUNSEL
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Although Grimes’ lawyer, Tho mas E. C arroll, also filed a Notice of ARGUED: Lance W. Turner, CARROLL LAW OFFICES, Appeal on behalf of Grimes’ daughter and listed her in the style of the Monticello, Kentucky, for Appellant. Charles E. English, Jr., case, the daughter was dismissed as a plaintiff below and she is not ENGLISH, LUCAS, PRIEST & OWSLEY, Bowling Green, mentioned in the appellate brief. Thus, we have no basis to adjudicate a claim by the daughter.
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liability and (b) against the driver of the truck because Gutierrez was driving about 50-55 mph, within the speed plaintiff’s claim was an “enhanced injury” claim; and (3) the limit, when she came upon a curve in the road. The truck trial court erred in admitting evidence concerning (a) drug and spun; and, as she tried to correct for the spin, she lost control alcohol use on the night of the accident by both plaintiff and of the truck. Gutierrez testified that her wheels may have the truck’s driver and (b) other accidents involving similar gone off the pavement. The truck tipped over and slid on the vehicles for the purpose of establishing notice to defendants passenger side, landing upside down. Gutierrez was of a potential defect in the seat belt, but not for the purpose of suspended upside down in the truck by her seat belt, but she establishing a design defect in the seat belt. was unhurt. Grimes was upside down on the passenger side of the truck, her head against the roof and her legs against the For the following reasons, we affirm the judgment of the windshield. As a result of the accident, she is a ventilatordistrict court. dependent quadriplegic.
I. A team of two emergency medical technicians responded to the accident. Both testified that plaintiff was conscious and FACTS able to talk to them. The two responding technicians gave conflicting testimony at trial as to whether plaintiff was Defendant Ford Motor Company is the parent corporation wearing her seat belt when they arrived. One of the of defendant Mazda North American Operations. On July 21, responding emergency medical technicians testified that when 1995, plaintiff Sharon Grimes, 24 years old, was a passenger he arrived at the accident scene, plaintiff, on the passenger in a 1994 Mazda B2300 pickup truck. The truck was side of the now-upside down truck, had her right arm manufactured by Ford and distributed by Mazda.2 It was entangled in the shoulder strap of a seat belt. The other owned by Norma Bergeron but was being driven that night by responding technician testified that plaintiff was not her daughter, Lisa Gutierrez. Grimes, Gutierrez, and another entangled in her seatbelt, and he further testified that plaintiff friend, April Shae Dyer, had been riding around in the truck told him that she had not been wearing her seatbelt. She also before the accident. Grimes was drinking beer, and there is told him that she had consumed alcohol, cocaine and also evidence that she and Gutierrez may have used cocaine marijuana before the accident. Plaintiff also told the and smoked marijuana before the accident as well. Plaintiff emergency room nurse that first treated her that she had not and Gutierrez dropped off Dyer around midnight, and plaintiff been wearing her seat belt and that she had consumed drugs then purchased more beer. and alcohol before the accident. Another nurse present in the emergency room when plaintiff arrived confirmed that The accident occurred as Gutierrez and plaintiff were plaintiff said she had not been wearing her seatbelt. In traveling on Highway 704 in Adair County, Kentucky, a rural contrast to her statements the night of the accident, plaintiff area. Gutierrez had not driven on the road before that night. testified at trial that she always wore her seat belt and was wearing it the night of the accident.
2 Also giving differing accounts of the situation at different The Mazda B230 0 pickup is essentially the same as the Ford Ranger Series pickups and much of the discussion at trial related to the Ford times was the driver, Lisa Gutierrez. At the time of the Ranger Series. accident, Gutierrez told the responding state trooper that both
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she and plaintiff had been wearing their seat belts at the time position at the time of the accident. The seat belt worn by the of the accident. However, Gutierrez testified at trial that driver, Gutierrez, showed the expected signs of having been plaintiff was not entangled in her seat belt after the accident. in use during the accident. Based on their findings, In addition, the responding officer testified that he tested Ford/Mazda’s experts concluded that plaintiff was not Gutierrez and she was not intoxicated at the time of the wearing her seat belt at the time of the accident. accident. Her blood alcohol level was consistent with her testimony that she had consumed one or two beers. Conversely, plaintiff presented expert testimony on “inertial unlatching,” where the button that releases the belt At trial, both sides presented expert testimony about the is subjected to forces during the accident that cause the button rollover propensities of the Ford Ranger/Mazda pickup truck. to move to the position it would be in if pressed to unlatch by Defendants’ expert testified that the likely cause of the the user. One of plaintiff’s experts, an engineer, testified that rollover was that the left wheels of the truck left the roadway. the bracket that anchored the seat belt to the frame of the The expert concluded that under the same conditions (curve truck was bent as if the seat belt had been in use during the in the road and driving at about 55 mph), many cars and light accident. His opinion was that plaintiff had been wearing her trucks would experience a rollover if the driver-side wheels seat belt at the time of the accident. Plaintiff’s other seat belt left the road. Another expert for Ford/Mazda testified that expert testified that the wear on the seat belt in question was this particular truck does not experience rollovers anymore consistent with the belt having been in use for at least part of frequently than other similar vehicles. the rollover accident and his opinion was that the belt came unlatched during the rollover. Finally, a forensic pathologist Plaintiff’s expert testified that there was no evidence that testified that had plaintiff’s seat belt been on and stayed on the truck’s tires had left the road, and it was his opinion that during the accident and if the truck had not rolled over, she the truck was on the road when it flipped over. Another would not have suffered such a serious injury. expert for the plaintiff testified that the type of suspension in this model of truck enhances the propensity to rollover The action was originally filed on May 28, 1996, in Adair because it raises the center of gravity. He testified that design (KY) Circuit Court against Lisa Gutierrez, the driver, changes to the wheel rims, use of smaller tires and switching Gutierrez’s mother, Norma Bergeron, who owned the truck at to different shock absorbers would make the vehicle much the time of the accident, Larry Bergeron, who is Gutierrez’s less likely to rollover under dry, flat pavement conditions. father, and Meridian Mutual Insurance Company. Larry Bergeron was dismissed shortly thereafter. An amended Both sides also presented expert testimony about whether complaint was filed adding Mazda and Ford as defendants six the seat belt was defective, thereby causing it to unlatch weeks later. Plaintiff alleged theories of negligence, breach during the rollover. Defendants presented two experts, both of warranty and strict liability. Defendants removed the case of whom testified that they did not find any marks on the to the Western District of Kentucky based on diversity of passenger-side seat belt (plaintiff was in the front passenger citizenship, 28 U.S.C. § 1332. After learning that plaintiff seat) that would likely have been present if plaintiff had been had filed an action against the Commonwealth in the wearing her seat belt at the time of the accident. One of Kentucky Board of Claims alleging that her injuries were defendant’s experts testified that the condition of the caused by the Commonwealth’s negligence in maintaining, passenger side seat belt indicates that it was in the “stowed” designing and constructing its roads and for failing to warn of
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a known dangerous curve, defendants filed a third-party contributing to the accident. Under Kentucky law, only by complaint pursuant to Federal Rule of Civil Procedure 14(a) bringing a third-party claim against the Department could against the Kentucky Transportation Cabinet, Department of defendants seek contribution from it for any damages Highways, seeking apportionment of fault and contribution awarded to plaintiff. Based on the joinder, plaintiff moved to under Kentucky law. Plaintiff moved to remand the case, remand the case to state court, arguing that joining the arguing that joining the Commonwealth as a third-party Department destroyed complete diversity and robbed the defendant destroyed the federal court’s diversity jurisdiction federal court of subject matter jurisdiction. The district court and violated the Eleventh Amendment to the United States denied the motion, citing Kentucky law that requires that, in Constitution. The district court denied the motion to remand order to receive an apportionment instruction, a claim must be and trial ensued. made against the alleged wrongdoer, even if there is no legal right to recover from that wrongdoer. As the district court After a 19-day trial, the jury returned a verdict in favor of noted, “the practice is to bring the alleged wrongdoer into the defendants, finding that plaintiff was not wearing her seat belt case by a third party complaint only to then have it dismissed. at the time of the accident and that the truck was not This sets up a possible apportionment instruction.” D. Ct. defective. Plaintiff timely appealed that verdict. Because the Order, dated Mar. 8, 2000. jury found that plaintiff was not wearing her seat belt at the time of the accident, it did not make a finding concerning Plaintiff’s argument that the complete diversity necessary whether there was a defect in the seat belt. The jury also for subject-matter jurisdiction under 28 U.S.C. § 1332 was found that the truck was not defective and, following the destroyed when defendants brought a claim against the instructions by the court and the verdict form, it answered no Commonwealth is without merit. Third-party claims by further questions as to that issue. Finally, because it found no defendants for contribution against a third-party under Federal liability on the part of defendants, no damages were awarded Rule of Civil Procedure 14(a)3 generally do not require an and the jury did not answer the questions on the verdict form independent jurisdictional basis. Instead, such claims fall regarding apportionment of damages. within the court’s supplemental jurisdiction if the impleaded defendant’s actions share a “common nucleus of operative II. fact” with the case already before the court.
DISCUSSION It is well settled that supplemental jurisdiction exists over a properly brought third-party complaint. King Fisher A. Joining the Kentucky Department of Transportation Marine Serv., Inc. v. 21st Phoenix Corp., 893 F.2d 1155, as a Third-Party Defendant Did Not Destroy the Federal Court’s Subject-Matter Jurisdiction
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Fed eral Rule of C ivil Pro cedure 14(a) states:
Defendants impleaded the Kentucky Department of Transportation as third-party defendants after they discovered At any time after the commencem ent of the action a defending that plaintiff had brought a separate action against the party, as a third-party plaintiff, may cause a summons and Department in the Kentucky Court of Claims for failure to complaint to be served upon a person not a party to the action warn about an existing road hazard and thereby causing or who is or may be liable to the third-party plaintiff for all or part of the plaintiff's claim against the third-party plaintiff.
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1161 (10th Cir. 1990) (“A court has ancillary jurisdiction of Kentucky’s failure to adequately warn drivers about a known a defendant’s proper Rule 14(a) claim against a third-party dangerous road. Accordingly, diversity was not destroyed defendant without regard to whether there is an independent when the Department was added as a third-party defendant basis of jurisdiction, so long as the court has jurisdiction of and the district court properly retained subject-matter the main claim between the original parties.”); 6 Charles Alan jurisdiction. True, as plaintiff notes, intervention or joinder Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice of a non-diverse and indispensable party at some point after and Procedure, § 1444, at 321 (2d ed. 1990) (“The cases on removal may defeat the court’s diversity jurisdiction. But in point almost all hold that defendant’s claim against a this instance plaintiff argues exactly the opposite — that the third-party defendant is within the ancillary jurisdiction of the Kentucky DOT was an improper party subject to Eleventh federal courts.”). Amendment immunity and against whom fault could not be apportioned.
The supplemental jurisdiction provision, 28 U.S.C. § 1367(b), states congressional intent to prevent original Plaintiff also contends that the fact that the Department was plaintiffs– but not defendants or third parties--from immune from suit under the Eleventh Amendment destroyed circumventing the requirements of diversity. See H.R. Rep. diversity jurisdiction when it became a party. The defendants No. 101-734, at 29 (1990), reprinted in 1990 U.S.C.C.A.N. raised the Eleventh Amendment as an affirmative defense, 6860, 6875 (explaining that the purpose of § 1367(b) is to and this defense does not raise a jurisdictional question here prevent “plaintiffs [from being able] to evade the for purposes of diversity. The district court properly jurisdictional requirement of 28 U.S.C. § 1332 by the simple dismissed the Department from the suit on Eleventh expedient of naming initially only those defendants whose Amendment grounds, and, as stated in its order, recognized joinder satisfies section 1332' s requirements and later adding that defendants joined the Department solely to allow them to claims not within original federal jurisdiction against other seek an instruction apportioning fault to the state if the defendants who have intervened or been joined on a evidence warranted. supplemental basis.”). By contrast, “[b]ecause defendants are involuntarily brought into court, their [claims a]re not deemed B. Evidentiary Rulings as suspect as those of the plaintiff, who is master of his complaint.” United Capitol Ins. Co. v. Kapiloff, 155 F.3d 1. Evidence Relating to Drug and Alcohol Use 488, 493 (4th Cir. 1998); see also North American Stainless v. PNC Bank, Kentucky, Inc., No. 99-5730 at **2 n.4, 2000 Plaintiff claims that the district court erred in allowing the WL 1256898 (6th Cir. July 13, 2000) (affirming case where introduction of evidence of drug and alcohol use by Gutierrez, district court exercised supplemental jurisdiction over third- the driver, and plaintiff herself, on the night of the accident party defendant that was not diverse from original plaintiff). because such evidence was irrelevant. Evidence that plaintiff used drugs and alcohol on the night of the accident was Here, the parties to the original action and the amended relevant because testimony was given at trial that she told one complaint were all diverse. The addition of the of the responding emergency medical technicians and the Commonwealth as a third-party defendant clearly arises from emergency room nurse that she was not wearing her seatbelt the “same nucleus of operative fact” because plaintiff had that evening. Plaintiff testified at trial that she always wore alleged that the accident was caused, at least in part, by her seatbelt and was wearing it at the time of the accident.
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Alcohol or drug use before the accident could have impaired plaintiff’s memory of the evening or caused her to not use a seatbelt even if she normally would use it. The district court therefore properly ruled that the evidence went to the weight of plaintiff’s testimony about her seat belt use the night of the accident.
As to Gutierrez, the driver, the court ruled that the evidence of her drug and alcohol use on the night of the accident went to the credibility of her testimony describing the accident. As the driver of the truck and a defendant in the case, evidence that she was under the influence of drugs or alcohol was clearly relevant. It may have caused or contributed to the accident. 2. Limiting the Purpose for Which Evidence of Similar Accidents Could Be Used Plaintiff introduced evidence from persons involved in other accidents where the seat belt latch in the vehicle was defective. The district court ruled that such evidence could be used only for the purpose of providing notice to the manufacturer of a possible defect, not as evidence that the product was defective. We believe that the court ruled correctly on this point. But, even if there were error, the error had no effect. The jury returned a special verdict that plaintiff was not wearing her seatbelt and that this, not design defect, may have been a cause of her injury.
C. Instructing the Jury on Apportionment of Fault Plaintiff’s appeal of the apportionment instructions is moot because the jury found no liability against defendants. See Adam v. J.B. Hunt Transport, Inc., 130 F.3d 219, 227 (6th Cir. 1997).
For the foregoing reasons, the judgment of the district court is affirmed.