Rodriguez, et al v. Riddell Sports Inc, et al

Revised February 16, 2001
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
m 99-40680
_______________
RAQUEL O. RODRIGUEZ AND JOSE L. RODRIGUEZ,
Plaintiffs-Appellees.
VERSUS
RIDDELL SPORTS, INC., ET AL.,
Defendants,
RIDDELL SPORTS, INC.; RIDDELL, INC.;
AND
ALL AMERICAN SPORTS CORP.,
DOING BUSINESS AS RIDDELL/ALL AMERICAN,
Defendants-Appellants.
_________________________
Appeals from the United States District Court
for the Southern District of Texas
_________________________
February 14, 2001

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2
Before JOLLY, JONES, and SMITH,
Circuit Judges.
JERRY E. SMITH, Circuit Judge:
Defendants, Riddell Sports, Inc. (“RSI”),
Riddell, Inc. (“RI”), and All American Sports
Corporation, doing business as Riddell/All
American. (“AA”), appeal a judgment holding
them strictly liable for a design defect in a
football helmet worn by plaintiff Jose
Rodriguez when he allegedly suffered a blow
causing brain injury, and finding them liable for
the bystander emotional distress suffered by
Jose’s mother, Raquel Rodriguez. Concluding
that the district court erred in charging the jury
and that, as a matter of law, no bystander
claim was viable, we reverse, remand in part,
and render in part.
I.
In 1995, Jose was a football player at Los
Fresnos High School. At the first football
scrimmage of the year, he played both offense
and defense and took more than twenty hits to
his helmet. After making his last tackle, which
witnesses described as a seemingly normal
one, he got up, went to the huddle, and walked
or jogged off the field to the bench, where he
first sat, then lay down in front of the bench
and lost consciousness.
Jose’s mother, Raquel, was present in the
stands during the scrimmage but did not see
Jose’s last tackle, see him leave the field, or
see him lie down. Sometime later, she was
told that he was lying on the ground, so she
went down to the field and saw him
unconscious and foaming at the mouth. Jose
was taken to a hospital and diagnosed as
having suffered a subdural hematoma, causing
permanent brain injury and a permanent
vegetative state.
II.
Jose and his mother sued for product
liability and bystander injury against the
manufacturer of Jose’s helmet. They asserted
that a design defect in the VSR-4 helmet
manufactured by RI and reconditioned by AA
significantly increased the chance of impact-
induced brain injury such as that Jose had
suffered.
Defendants are separate but related
corporations. RI manufactures the VSR-4
helmet; AA is an athletic equipment recondi-
tioner; RSI is a holding company and the
parent of RI and AA. The VSR-4 helmet Jose
wore was manufactured by RI and purchased
by the school district before the 1994 football
season and was reconditioned by AA in early
1995. The helmet’s liner contained cells of an
energy-absorbing foam (“old” Rubatex 3952
foam) that plaintiffs claim was fabricated by RI
in September 1993.
Plaintiffs assert that the helmet was man-
ufactured and purchased in 1994. They base
this contention on the fact that the number
“94010677" stamped in the shell of the helmet
meant the year 1994 and that the number
“993” stamped in the liner meant September
1993. Defendants challenge this claim, ar-
guing that the helmet may have been
manufactured as early as 1992.
In 1994, RI received samples of a new en-
ergy-absorbing foam. It did some initial tests
on the foam from February to May 1994 but
did not test the foam again until October 1995,
when it concluded that the new foam had bet-
ter energy-absorbing qualities and began to use
it in its helmets.
Plaintiffs claim that if Jose’s helmet had
contained the new foam or thicker pieces of

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3
the old foam, the injury would not have
occurred. Plaintiffs’ biomechanical expert, Dr.
Stalnaker, testified that the new foam would
have reduced substantially the risk of a subdur-
al hematoma. Therefore, Stalnaker
characterized Jose’s helmet as defective and
unreasonably dangerous and, alternatively,
opined that it could have been made safer
simply by using less “comfort” foam and
thicker pieces of the old energy-absorbing
foam.
In response, RI’s helmet designer stated
that the helmet Stalnaker designed for demon-
stration at trial, with thicker energy-absorbing
foam, was not practical. Stalnaker’s design re-
quired removing most of the soft “comfort”
foam and replacing it with hard energy-
absorbing foam. RI’s designer claimed players
would not wear such a helmet, because it
would be too uncomfortable. As to the claim
that the new energy-absorbing foam should
have been used in Jose’s helmet, RI argued
that it could not be used until testing was
complete in October 1995SStwo months after
Jose’s injury.
Plaintiffs argued, however, that RI could
have begun using the new foam much earlier,
because RI had received its first samples of it
in February 1994. RI disagreed, introducing
evidence that it had sent the sample foam back
to the supplier for the supplier to address some
concerns RI had with it. RI also presented tes-
timony that the producer of the new foam was
not sure initially that it could supply the new
foam consistently.
Nonetheless, plaintiffs alleged that the
reason the new foam was not tested again until
October 1995 was that RI wanted to use up its
stock of old, inferior foam. The only evidence
plaintiffs introduced to support these
allegations was that RI canceled an order of
the old foam in 1993. This occurred,
however, before RI had even received samples
of the new foam.
Plaintiffs also argued that even if Jose’s
helmet was manufactured before RI received
any new foam, the new foam could have been
inserted by AA when it had Jose’s helmet from
December 1994 to May 1995 for
reconditioning. Defendants denied that the
new foam was available for use at that time
and argued further that AA, as a mere service
provider, had no obligation to upgrade Jose’s
helmet.
In addition to the products liability claim,
plaintiffs assert a bystander claim on the theory
that Raquel Rodriguez witnessed the
manifestation of Jose’s injury and, under Texas
law, is entitled to recover for emotional
distress. Defendants dispute the existence of
any such bystander claim, because Raquel
Rodriguez did not perceive both the accident
and the manifestation of injury.
After plaintiffs rested, defendants moved
for judgment as a matter of law (“j.m.l.”) for
insufficiency of the evidence on the design de-
fect claim and as to the bystander claim. After
both sides closed, the court deemed all
motions timely reurged.
Defendants also objected to the jury charge,
arguing that the questionsSSwhich referred to
the defendants as one entitySScould allow the
jury to find for plaintiffs without their having
proved their case against each defendant. The
court denied the objection.
After the verdict, defendants reurged their
motion for j.m.l. on the bystander claim. The
court denied all pending motions and awarded

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4
Jose $9.9 million and Raquel $1.55 million.
III.
A.
Defendants contend the court erred as a
matter of law in its jury charge by treating all
the defendants as one entity and submitting
questions on products liability as to parent
RSI. It is undisputed that defendants objected
to the charge before the case was submitted, in
accordance with FED. R. CIV. P. 51. We re-
view errors of law de novo but reverse a
charging error only where “the charge as a
whole leaves us with substantial and ineradica-
ble doubt whether the jury has been properly
guided in its deliberations.” Stine v. Marathon
Oil Co., 976 F.2d 254, 259 (5th Cir. 1992)
(citation omitted).
Question One of the charge asked: “Was
there a design defect in the VSR-4 football
helmet at the time it left the possession of De-
fendants that was a producing cause of the
injury in question? (Emphasis added.)
Question Four, the other question referring to
the defendants, asked: “Did the Defendants’
actions rise to a level of willful or callous and
reckless indifference to the safety or rights of
others?” (Emphasis added).1
The evidence showed that AA is a separate
corporation from RI. Although both AA and
RI are owned by RSI, a holding company,
plaintiffs did not argue that defendants were
alter egos, that they were agents of each other,
or that the corporate veil should be pierced.
Absent proof of one of these conditions, the
corporate form must be respected. See Lucas
v. Tex. Indus., Inc., 696 S.W.2d 372, 374
(Tex. 1985).
Defendants argue that treating them as one
entity was an error of law, because they are
separate, and that the harm of this aggregation
is that it allowed the jury to apply the strict lia-
bility standardSSwhich applies only to
manufacturersSSto service provider AA and to
RSI and allowed the jury to consider the hel-
met to be in the possession of the manufactur-
erSSthus triggering a duty to upgradeSSwhen
it was merely at the shop of a service provider.
Plaintiffs respond that defendants cannot
object to the combining of the defendants in
the charge, because defendants invited the er-
ror by referring to themselves collectively. See
United States v. Baytank Inc., 934 F.2d 599,
606 (5th Cir. 1991).2 Defendants dis
1 In explaining Question One, the court said:
Question Number 1 just outright ask [sic]
you: Look, was the helmet when it left the
possession of the defendant a producing
cause of the injury in question? Was there
something wrong with it when it left the
defendant that producedSSwas the
producing cause of the injury in question?
Later, in instructing the jury on damages, the court
said:
(continued...)
1(...continued)
It is your first task to decide whether the
defendant is liable. I am instructing you on
damagesSSon damages only so that you will
have guidance in the event you decide that
the defendant is liable and that the plaintiff
is entitled to recover money from the
defendant.
2 Plaintiffs make a material misrepresentation to
bolster their claim that no harm occurred from
combining the defendants. Plaintiffs state that
“[d]efendants’ counsel represented at trial that his
three clients, including Riddell Sports, jointly man-
ufactured the helmet.” The portion of the record
(continued...)

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5
agree, saying that plaintiffs take defendants’
comments out of context and that defense
counsel said “defendant” only when referring
to a particular defendant, usually RI.
A thorough review of the record shows that
defendants did not object as often as they
could have when plaintiffs referred to them as
one entity and that defense counsel, from time
to time, may have been a bit sloppy in his ref-
erences to defendants.3 Nonetheless, the evi-
dence is plain that the three defendants were
distinct corporations.
Further, it is plaintiffs’ duty to prove each
element of their prima facie case. Thus if
combining two corporations into one is
necessary to apply a strict liability standard,
then plaintiffs must prove that the corporations
should be combined, and sloppiness on the
part of defendants does not excuse plaintiffs
from this burden.
Plaintiffs argue, alternatively, that it was
harmless error for the court to combine all
three defendants, because defendants have
common stockholders and common insurance
coverage. Thus, according to plaintiffs, it does
not matter which defendant is found liable,
because the same insurance company will pay.
This is not enough to disregard the
corporate form, however. Under plaintiffs’
theory, there would be no point in having
separately incorporated subsidiaries, because
merely having common stockholders or
insurers would be enough to allow the
corporate form to be disregarded. Moreover,
plaintiffs do not address defendants’ argument
that aggregating the defendants allowed the
jury to treat AA’s possession of the helmet as
equivalent to RI’s possession and control of
itSStriggering the duties and liabilities that
apply to a manufacturer instead of those that
apply to a service provider.
B.
Under Texas law, a manufacturer is strictly
liable for a design defect if a product was un-
reasonably dangerous when it left its control.
Bell Helicopter Co. v. Bradshaw, 594 S.W.2d
519, 531 (Tex. Civ. App.SSCorpus Christi
1979, writ ref’d n.r.e.); RESTATEMENT (2D) OF
TORTS § 402A.
If the product is not unreasonably
dangerous at the time it leaves the
manufacturer's control, the manufacturer
does not become strictly liable for
damages if the product subsequently
becomes unreasonably dangerous unless
the manufacturer regains a significant
degree of control of the product, and the
product is then determined to be
unreasonably dangerous before the
manufacturer loses control of the
product.
Bell Helicopter, 594 S.W.2d at 531; Otis
Elevator Co. v. Bedre, 758 S.W.2d 953 at 955
(Tex. App.SSBeaumont 1988), aff’d in part
and rev’d in part, 776 S.W.2d 152 (Tex.
1989).4
2(...continued)
that plaintiffs cite in support of this contains
nothing of the sort, nor could we find any such
representation elsewhere in the record.
3 Part of the confusion likely was caused by the
fact that AA did business as Riddell/All American.
4 See also Dion v. Ford Motor Co., 804
S.W.2d 302, 311 (Tex. App.SSEastland 1991, writ
denied).

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“We evaluate whether a product has a de-
sign defect in light of the economic and sci-
entific feasibility of safer alternatives.”
Caterpillar, Inc. v. Shears, 911 S.W.2d 379,
384 (Tex. 1995) (citing Boatland, Inc. v.
Bailey, 609 S.W.2d 743, 746 (Tex. 1980)).
“The degree of feasibility is one factor courts
weigh in balancing the utility of a product
versus its risks.” Id. (citing Turner v. Gen.
Motors Corp., 584 S.W.2d 844, 846, 849
(Tex. 1979). “However, if there are no safer
alternatives, a product is not unreasonably
dangerous as a matter of law.” Id. (citing
Boatland, 609 S.W.2d at 748). “Texas law
does not require a manufacturer to destroy the
utility of his product in order to make it safe.”
Hagans v. Oliver Mach. Co., 576 F.2d 97, 101
(5th Cir. 1978).
Defendants contend that the jury may have
found strict liability in either of two ways, one
of which would have been based on legal er-
ror. On one hand, the jury may have given
credence to plaintiffs’ evidence that Jose’s
helmet was unreasonably dangerous at the
time of its design or by the time it was sold.
The jury may have believed Stalnaker’s
testimony that the helmet could have been
made safer at the time of its design in 1992
merely by inserting more energy-absorbing
foam and using less comfort foam. If the jury
reached this conclusion of fact, its verdict
would be unassailable, because, by law, if a
safer alternative design existed at the time of
manufacture and sale, then the product was
unreasonably dangerous.
On the other hand, if the jury did not
believe that a safer alternative existed when the
helmet was sold, it must have found liability
under a legally erroneous theory. The jury
may have believed defendants’ design witness,
who testified that Stalnaker’s design was in-
feasible because removing the comfort foam to
add more hard, energy-absorbing foam would
make the helmet so uncomfortable that no one
would want to wear it.
If this were the case, the jury, to reach its
finding of liability, must have believed that as
soon as RI completed its first round of tests on
the new foam in May 1994SSseventeen months
before RI manufactured any helmets using the
new foamSSa safer alternative design had
become available. The jury further must have
believedSSbecause the jury instruction referred
to all three defendants as oneSSthat when AA
(the reconditioner) had Jose’s helmet in May
1995, it was the same as if RI (the man-
ufacturer) had the helmet, and therefore there
was a duty to substitute the new foam that RI
had in sample form, because the new foam
constituted a safer alternative design.5
5 Plaintiffs exhaustively urged this theory to the
jury; they combined all of the defendants to argue
on closing:
What happens in between their receipt of
the new foam in February of ‘94 and the
time that they finally drop tested it? They
had Joe Rodriguez’ helmet in their hands.
They sent a representative out to Los Fres-
nos High School and they said, “Let us take
care of your helmets. We will take them
back from you.” . . .
And what did they do? They took it back,
they charged Los Fresnos High School
money and they returned it to them on May
11, 1995, with the representation on a stamp
right here, . . . that says that this is a recerti-
fied helmet in accordance with the
NOCSAE standards. The representation
that they made to the coaches at Los Fres-
nos High School and indirectly to the
players like Joe Rodriguez and to their
(continued...)

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7
This would have been error, because under
Texas law a maintenance contract does not im-
pose on the contractor responsibility for design
defects or to upgrade a product. See Muniz v.
Ransomes Am. Corp., 921 F. Supp. 438, 442
(S.D. Tex. 1995), aff’d, 81 F.3d 154 (5th Cir.
1996). In fact, even if, hypothetically, plain-
tiffs had made a negligence claim against AA
for not using the new foam, to maintain the
action the contractor must have a duty to en-
hance the product. AA’s contract with the
school specifically said that it did not have that
duty: “[AA] does not undertake to change or
modify the design, construction, material or
fitness of the athletic equipment herein listed,
it’s [sic] only obligation being to recondition
such equipment as herein specified.”
Plaintiffs disagree, arguing that RI regained
significant control over the helmet when AA
took it in for reconditioning: “As the
authorized agent and sister company of Rid-
dell, the VSR-4 helmet is deemed to have left
the hands of Riddell on the same day it left the
hands of All American with insufficiently thick,
inferior ‘o ld’ foam.” Plaintiffs introduced no
evidence that the VSR-4 is the authorized
agent or sister company of RI. We assume,
though, that plaintiffs meant to argue that RI
and AA have such a unique relationship that
RI regained a significant degree of control
over the helmet when AA reconditioned it,
thus subjecting RI to strict liability because the
safest available foam was not used.
Plaintiffs rely heavily on Bell Helicopter, in
which plaintiff claimed that a helicopter had an
unreasonably dangerous tail rotor blade. Al-
though the court found that the blade was not
unreasonably dangerous when it initially left
Bell’s control in 1961, the court held that Bell
regained “a significant degree of control” of
the helicopter when Houston Helicopters, a
Bell service station, acquired title to the
helicopter in 1969. Bell Helicopter, 594
S.W.2d at 530.
In 1970, Bell learned that the tail rotor
blade was dangerous and began a program to
replace it. The helicopter at issue, however,
was never refitted with an improved blade;
Houston Helicopters sold the helicopter to the
plaintiff in 1973. The court held as a matter of
law that Bell had control of the helicopter, for
strict liability purposes, when Houston Heli-
copters owned it, because of “the unique
relationship between the service stations and
Bell.” Id. at 531.
Although Bell did not possess the actual
power of the FAA to require owners to
replace the 102 system with the 117 sys-
tem, as a practical matter, it could ac-
complish the same result through its
service stations. All of Bell service sta-
tions were required to adhere to and
comply with all Bell-issued service bul-
letins or safety notices regarding Bell-
made component parts, the servicing of
same, or the replacement thereof. Had
Bell demanded a replacement of the 102
system with the 117 system or delivered
5(...continued)
brothers and sisters like Carmen and Diana
and Juan.
The representation was, this is the best
helmet that technology can make. That’s
what they are telling the world, ladies and
gentlemen, when they put this thing back on
the marketplace on May 11th, 1995.
And what was it really? It wasn’t even
the best foam that they had sitting on their
shelves.

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8
an adequate notice concerning the
unreasonably dangerous condition of the
102 system during the time the
helicopter remained in the possession of
Houston Helicopters, the latter would
have complied with Bell’s directive.
Id.
Defendants contend that Bell Helicopter is
not determinative and that this case is more
like Dion v. Ford Motor Co., 804 S.W.2d 302
(Tex. App.SSEastland 1991, writ denied),
which distinguished Bell Helicopter and ruled
that a manufacturer had not regained a
“significant degree of control” of a tractor so
as to subject it to strict liability. In Dion, a
plaintiff sued for damages incurred when his
Model 8N tractor rolled over and crushed him;
he argued that the tractor was unreasonably
dangerous because it did not have a rollover
protection system. The court held that the
tractor was not unreasonably dangerous when
it was manufactured in 1950, because no
tractors manufactured at that time had rollover
protection systems.
As technology improved, all Ford tractors
were built with rollover protection systems,
and Ford began manufacturing such systems
that could be placed on the Model 8N. The
court noted that, like the plaintiff in Bell Heli-
copter, Dion had his tractor serviced at a ser-
vice station authorized by the manufacturer; no
one at the station told him that he should have
a rollover protection system installed. The
court distinguished Bell Helicopter, pointing
out that “McMaster Ford never took title to
the tractor, and Ford never issued any
replacement program for the 8N tractor.” Id.
at 311. The court concluded that “Ford did
not regain a ‘significant degree of control’ as
required by Bell Helicopter Company.” Id.6
“Whether a duty exists under a given set of
facts and circumstances is essentially a
question of law for the trial court.” Id.
(citations omitted). We review questions of
law de novo. Stine v. Marathon Oil Co., 976
F.2d 254, 259 (5th Cir. 1992).
Our task, therefore, is to determine whether
the instant facts are more similar to those in
Bell Helicopter or to those in Dion. If the
former, then as a matter of law the
manufacturer regained a “significant degree of
control” and is strictly liable. If the latter, then
strict liability does not apply to the
reconditioning of the helmet.
6 The Dion court also relied on Otis Elevator
Co. v. Bedre, 758 S.W.2d 953, 955 (Tex.
App.SSBeaumont 1988), rev’d on other grounds,
776 S.W.2d 152 (Tex. 1989) (per curiam), another
case distinguishing Bell Helicopter, in which the
court made the following factual distinction:
In this case, the Otis elevator in question
had not been sent back to an Otis
maintenance and repair shop; nor had the
elevator been placed in one of Otis’ own
authorized service stations. Otis had not
regained possession or title to the elevator in
question; nor had Otis issued any direct,
unequivocal orders or authorizations to
replace certain parts or systems on the
elevator. In Bell Helicopter . . ., these
compelling, paramount facts existed.
Furthermore, no jury finding exists that the
elevator in question was defective when it
left the possession of Otis and entered into
the stream of commerce. In fact, Otis lost
control and possession of the elevator when
it was sold in 1961. Otis never regained
control or possession in the same manner as
did Bell Helicopter Company.

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9
The facts of this case are more similar to
those in Dion; indeed, they are almost
identical. As in Dion, RI manufactured and
sold the product, at which point it lost control
of it. Then, some time later, an authorized
service provider serviced the helmet without
ever taking title to it. Further, RI instituted no
program to replace the old foam with the new.
In fact, RI had not even begun to use the new
foam itself.
Thus, as a matter of law, RI never regained
the “significant degree of control” required to
make it strictly liable for the helmet when it
was in AA’s shop for servicing.7 If the jury
found RI strictly liable for AA’s failure to
improve the helmet, this was legal error.
As we have said, we vacate a jury award if
the jury charge as a whole leaves substantial
and ineradicable doubt whether the jury has
been properly guided. See Skidmore v.
Precision Printing & Packaging, Inc., 188
F.3d 606, 614 (5th Cir. 1999). We do not
reverse where the jury instructions contain
mere factual errors; instead, we assume the
jury considered all the evidence in reaching its
decision. Walther v. Lone Star Gas Co., 952
F.2d 119, 126 (5th Cir. 1992).
When the court erroneously instructs a jury
on the law, however, the jury may correctly
apply the facts to the incorrect legal standard
in making its decision. Therefore, if a jury
could find liability according to multiple
theories, and one of them is erroneous, we re-
verse unless we can tell that the jury came to
its decision using only correct legal theories.
Id. If it is impossible to tell whether a correct
theory has been used, we reverse for a new
trial. Id.8 Such is the case here.
C.
The court also erred as a matter of law in
allowing the case to go to the jury with regard
to RSI. It is undisputed that RSI is a holding
company and parent of RI and AA but does
not produce anything or place anything in the
stream of commerce. “Generally, a court will
not disregard the corporate fiction and hold a
corporation liable for the obligations of its sub-
7 Cf. Torres v. Caterpillar, Inc., 928 S.W.2d
233, 240-42 (Tex. App.SSSan Antonio 1996, writ
denied) (assuming plaintiff bought a used forklift
from an authorized dealer, but refusing to hold that
the fact that the dealer acquired and resold the
forklift without a rollover bar was enough to allow
conclusion that the manufacturer had thus regained
a “significant degree of control” to be held strictly
liable).
8 We explained in Walther, 952 F.2d at 126,
that
[t]he Supreme court has said in the criminal
context that “a general verdict must be set
aside if the jury was instructed that it could
rely on any of two or more independent
grounds, and one of those grounds is
insufficient, because the verdict may have
rested exclusively on the insufficient
ground.” Zant v. Stephens, 462 U.S. 862,
881 (1983); see also Neubauer v. City of
McAllen, 766 F.2d 1567, 1575 (5th Cir.
1985). This principle has its origins in
Stromberg v. California, 283 U.S. 359
(1931), where the Court reversed a
conviction when one of three possible bases
for the jury’s verdict was unconstitutional.
. . . In Griffin v. United States, 502 U.S. 46
(1991), [however,] the Court explained that
the Stromberg rule should be applied only
when jurors have been left the option of
relying on a legally inadequate theory, not a
factually inadequate theory.
(Parallel citations omitted.)

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10
sidiary except where it appears the corporate
entity of the subsidiary is being used as a sham
to perpetrate a fraud, to avoid liability, to
avoid the effect of a statute, or in other ex-
ceptional circumstances.” Lucas v. Tex. In-
dus., Inc., 696 S.W.2d 372, 374 (Tex. 1985)
(citing Torregrossa v. Szelc, 603 S.W.2d 803
(Tex. 1980)).
“There must be something more than mere
unity of financial interest, ownership and con-
trol for a court to treat the subsidiary as the
alter ego of the parent and make the parent lia-
ble for the subsidiary’s tort.” Id. Nothing of
this sort is even alleged, so it was an error of
law not to dismiss RSI; we reverse and render
judgment for that defendant.
IV.
Raquel Rodriguez’s bystander recovery
must be reversed as a matter of law. In Texas,
bystander recovery is available if a plaintiff can
establish that
(1) The plaintiff was located near the
scene of the accident, as contrasted with
one who was a distance away from it;
(2) The plaintiff suffered shock as a re-
sult of a direct emotional impact upon
the plaintiff from a sensory and
contemporaneous observance of the
accident, as contrasted with learning of
the accident from others after its
occurrence; and
(3) The plaintiff and the victim were
closely related, as contrasted with an ab-
sence of any relationship or the presence
of only a distant relationship.
Freeman v. City of Pasadena, 744 S.W.2d
923, 923-24 (Tex. 1988).9 The Texas
Supreme Court, while recognizing that these
“elements are flexible and should be applied on
a case-by-case basis,” recently clarified that the
issue of bystander recovery becomes a
question of law when the material facts are
undisputed. See U. S. Auto. Ass’n v. Keith,
970 S.W.2d 540, 542 (Tex. 1998).
In Keith, Dianna Keith arrived on the scene
of an automobile accident and perceived that
her daughter’s car was still smoking, and heard
the “scary noises” her daughter was making in
response to her injuries. Keith remained there
while the rescue crews removed her daughter
from the car and accompanied her daughter to
the hospital.
Despite Keith’s being a witness to the pain
and suffering that resulted from the accident,
the court denied the claim, stating that “Texas
law still requires the bystander’s presence
when the injury occurred and the
contemporaneous perception of the accident.”
Id. Where a plaintiff does not meet these
requirements, even where the observance of
the effects of the injury creates an emotional
impact, “[she] is in the same position as any
other close relative who sees and experiences
the immediate aftermath of a serious injury to
a loved one”SSrecovery is not available. Id.
That a parent arrives on the scene and
witnesses a child’s “pain and suffering at the
site of the accident rather than at the hospital
or some other location does not affect the
analysis.” Id.
Here, Raquel Rodriguez did not witness the
injurySSshe did not have a contemporaneous
perception of it. There is little doubt that see-
9 See also Edinburg Hosp. Auth. v. Trevino,
941 S.W.2d 76, 80 (Tex. 1997).

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11
ing her son suffering from the effects of his ac-
cidentSSfrothing at the mouth and spitting
salivaSSwas horrifying and emotionally painful.
Emotional distress, however, must occur
under certain conditions, not met here, for a
parent to be entitled to bystander recovery.
The court erred in allowing this question of
law to go to the jury.
V.
A.
Defendants claim the court committed plain
error by repeatedly intervening in the trial to
the plaintiffs’ benefit and by encouraging the
jury to think of the defendants as one entity.
The testimony of the expert witnesses was in
sharp conflict on the issues of causation and
design defect. The credibility of the experts
therefore became a crucial criterion by which
the jury could determine whom to believe.
Defendants contend the court repeatedly
questioned defense witnesses in such a way so
as to discredit them and show that the court
did not believe them.
Further, defendants aver that the court’s
references to Jose Rodriguez as a “victim” and
to defendants as “defendant” tipped the jury
that the judge thought Rodriguez was a victim
of defendants’ product and that the defendants
could be viewed as one entity, in contradiction
of corporate law. Finally, defendants claim the
court took charge of the questioning of one
defense witness and suggested an argument
against defendants that plaintiffs had not come
up with on their own.
Defendants did not object at trial to the
court’s interventions, so a plain error standard
applies. See United States v. Gray, 105 F.3d
956, 964 (5th Cir. 1997). Plain error is
“‘clear’ or ‘obvious,’ and, ‘[a]t a minimum,’
contemplates an error which was ‘clear under
current law’ at the time of trial.” United
States v. Calverley, 37 F.3d 160, 162-63 (5th
Cir. 1994) (en banc) (quoting United States v.
Olano, 507 U.S. 725, 734 (1993)). “[T]o be
reviewable under this standard an obvious le-
gal error must affect substantial rights. . . .
[P]lain forfeited errors affecting substantial
rights should be corrected on appeal only if
they ‘seriously affect the fairness, integrity, or
public reputation of judicial proceedings.’” Id.
at 164 (quoting United States v. Atkinson, 297
U.S. 157, 160 (1936)).
“A trial judge has wide discretion over the
‘tone and tempo’ of a trial and may elicit fur-
ther information from a witness if he believes
it would benefit the jury.” United States v.
Rodriguez, 835 F.2d 1090, 1094 (5th Cir.
1988) (quoting United States v. Adkins, 741
F.2d 744, 747 (5th Cir. 1984)). Federal Rule
of Evidence 614(b) allows the court to
“interrogate witnesses, whether called by itself
or by a party.” The court “‘may question wit-
nesses and elicit facts not yet adduced or
clarify those previously presented.’” United
States v. Williams, 809 F.3d 1072, 1087 (5th
Cir. 1987) (quoting Moore v. United States,
598 F.2d 439, 442 (5th Cir. 1979)). “A
judge’s questions must be for the purpose of
aiding the jury in understanding the
testimony.” United States v. Saenz, 134 F.3d
697, 702 (1998) (citing United States v. Ber-
mea, 30 F.3d 1539, 1570 (5th Cir. 1994)).
“However, the trial court’s efforts to move the
trial along may not come at the cost of ‘strict
impartiality.’” Id. (citing United States v.
Davis, 752 F.2d 963, 974 (5th Cir. 1985)).
“In reviewing a claim that the trial court ap-
peared partial, this court must ‘determine
whether the judge’s behavior was so
prejudicial that it denied the [defendant] a fair,
as opposed to a perfect, trial.’” Id. (quoting

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12
Williams, 809 F.2d at 1086 (quoting United
States v. Pisani, 773 F.2d 397, 402 (2d Cir.
1985))). “To rise to the level of constitutional
error, the district judge’s actions, viewed as a
whole, must amount to an intervention that
could have led the jury to a predisposition of
guilt by improperly confusing the functions of
judge and prosecutor.” Bermea, 30 F.3d at
1569; see also United States v. Mizell, 88 F.3d
288, 296 (5th Cir. 1996).
“Our review of the trial court’s actions
must be based on the entire trial record.”
Saenz, 134 F.3d at 702 (citing United States v.
Carpenter, 776 F.2d 1291, 1294 (5th Cir.
1985)). “A trial judge’s comments or
questions are placed in the proper context by
viewing the ‘totality of the circumstances,
considering factors such as the context of the
remark, the person to whom it is directed, and
the presence of curative instructions.’” Id.
(quoting United States v. Lance, 853 F.2d
1182) (5th Cir. 1988). “The totality of the cir-
cumstances must show that the trial judge’s in-
tervention was ‘quantitatively and qualitatively
substantial.’” Id. (quoting Bermea, 30 F.3d at
1569).
Evidently the district court did not
appreciate that by effectively consolidating the
defendants, it allowed the jury to return a
verdict when the plaintiffs had not proven each
element of their case; we have already dealt
with this error by reversing and remanding.
The remainder of the court’s actions did not
amount to prejudicial conduct that meets the
plain error standard applicable here. Although
the court often intervened, our thorough
review of the record does not reveal
systematic bias rising to the plain error
standard. Furthermore, the court specifically
instructed the jury that it should give no
special weight to any questions it asked of the
witnesses.10
We do note, however, that some of the
court’s comments could have been interpreted
by the jury as an indication of the court’s pre-
ference for plaintiffs over defendants. We de-
cline to indicate whether, had defendants ob-
jected, we would reverse on this additional
ground. The court is reminded that, on
remand, it must be careful not to use its
extensive authority over the proceedings to
prejudice the result.
We are troubled, in addition, by the court’s
questioning of a defense expert who estimated
that the speed at which Rodriguez hit the
ground was one-half the speed that plaintiffs’
expert had estimated. The court took control
of the questioning and suggested that the de-
fense witness should agree with him that, if the
injury occurred on that play, and if Rodriguez
fell more slowly than plaintiffs say he did, it
must mean that the helmet was even more de-
fective than previously thought, because it did
not protect Rodriguez at the slower speed.
The court then opined that because of this, he
10 The court instructed:
If I did not tell you when we began this
case, I sure mean to tell you now. I didn’t
have an opinion then. I still don’t.
And although I asked questions, I asked
you when we started this case to be very
mindful of the fact that you were not to give
them any less or more importance because I
asked them. It is not my intention and never
was it my intention to invade what is
exclusively your province.
So if I did anything to lead you to believe
that I had an opinion about the case, please
disregard it. That was not my intention.

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13
thought defendants instead should be arguing
that the speed was higher.11
Defendants reason that this intervention
was an attempt to help the plaintiffs by
undercutting defendants’ theory of the case.
We agree that, at best, the comments violated
the stricture that a court should not comment
on trial strategy. Moore v. United States, 598
F.2d 439, 445 (5th Cir. 1979). The court
should keep this in mind on remand.
B.
Defendants contend the court improperly
allowed Stalnaker’s expert testimony without
fulfilling the gatekeeping role required by Dau-
bert v. Merrill Dow Pharmaceuticals, Inc.,
509 U.S. 579 (1993). Daubert, in conjunction
with Federal Rule of Evidence 702, “imposes
a special obligation upon a trial judge to
ensure that any and all scientific testimony . .
. is not only relevant, but reliable.’” Kumho
Tire Co. v. Carmichael, 526 U.S. 137, 147
(1999) (quoting Daubert, 509 U.S. at 589).
This obligation pertains not only to scientific
evidence but to “all expert testimony.” Id.
To trigger a Daubert inquiry, an expert’s
testimony, or its “factual basis, data,
principles, methods, or their application,” must
be “called sufficiently into question.” Id. at
149; see Tanner v. Westbrook, 174 F.3d 542,
546 (5th Cir. 1999). Defendants moved to
exclude Stalnaker, challenging the basis for his
opinion and including an affidavit from one of
their experts that disagreed with the testimony.
Because we are remanding, we do not in-
quire whether the court abused its discretion in
admitting Stalnaker’s testimony, but we note
that under Tanner, id. at 545, the court must
articulate its basis for admitting expert
testimony and that the proponent of expert tes-
11 The relevant portion of the transcript states:
The Court: But let us assume for the sake
of speaking, if you can from an engineering
standpoint, we understand you have to con-
fine yourself to that, that there is no
preexisting injury and this was as a result of
something that was wrong with the helmet,
itself, shouldn’t the ones who are claiming
would want him to come down slower and
the ones against whom the claims are made
want him to be coming down faster?
* * *
The Court: Wouldn’t you then expect
defendants to want him to go down faster
and plaintiffs to want him to go down
slower?
The Witness: I see what you are saying.
The Court: To show that, for example, the
item did not serve its purpose even at a
slower impact?
* * *
The Court: For example, ifSSand that is not
for us to determine, and I am not
presupposing thatSSthere is something
wrong with this helmet, that there is more
wrong with it if he went down more slowly?
The Witness: If you start out with that
premise, I would agree with you.
* * *
The Court: So for us lay persons, why is
one side wanting it to be faster and the other
one wanting it to be slower? Do you know?
(continued...)
11(...continued)

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14
timony “must prove by a preponderance of the
evidence that the testimony is reliable.” Id. at
547.
C.
Defendants complain that the court granted
each side seven peremptory strikes instead of
the usual three and that this allowed plaintiffs
to “remove all or virtually all of one part of the
population (the educated sector, the middle-
class, and the upper middle-class).” Defen-
dants do not in any way support their as-
sertion, nor do they explain how the plaintiffs
were able to control the makeup of the jury
when defendants had an equal number of
strikes and therefore could have struck
members of other perceived sectors of the
population, assuming such persons were in the
venire.
The record shows that the court gave extra
strikes because there were many more
potential jurors available at that time than
there were trials. Title 28 U.S.C. § 1870
allows a court complete discretion in
apportioning additional peremptory challenges
on the basis of multiple parties on either or
both sides of a suit. Although caselaw from
this and other circuits demonstrates that
additional strikes usually are granted when
multiple parties on the same side of a suit are
antagonistic in some respects and, therefore,
may not share the same strategy for striking
potential jurors, there is no definite rationale in
the rules that specifies the circumstances under
which a court may grant more than three
strikes.
Defendants cite Globe Indemnity Co. v.
Stringer, 190 F.2d 1017, 1018 (5th Cir. 1951),
which characterizes the discretion given under
28 U.S.C. § 1870 as not “arbitrary or
unreasonable,” but “reviewable where the
record discloses its improper or unreasonable
exercise.” Abuse of discretion has been found,
however, only in instances in which a court re-
fused to grant more than three strikesSSeither
because it was unaware of its ability to do so
or because it did not correctly perceive the
harm done to one or more parties who could
not agree on strikes. See, e.g., John Long
Trucking, Inc. v. Greear, 421 F.2d 125, 128
(10th Cir. 1970). In the absence of either stat-
utory language regarding the proper exercise
of judicial discretion in granting additional jury
strikes or caselaw stating that granting ad-
ditional strikes to multiple parties with fully
aligned interest is improper, we cannot find an
abuse of discretion here.
The judgment is REVERSED, and
judgment is RENDERED in favor of
defendant RSI. This matter is REMANDED
for further proceedings consistent with this
opinion.

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