Elizabeth Trull, Nathaniel Trull, by His Father v. Volkswagen of America, Inc., and Volkswagenwerk, A.g.

*Of the Eastern District of Pennsylvania, sitting by
designation.
United States Court of Appeals
For the First Circuit
No. 98-1812
ELIZABETH TRULL, NATHANIEL TRULL,
BY HIS FATHER AND NEXT FRIEND DAVID TRULL,
DAVID TRULL, INDIVIDUALLY AND AS ADMINISTRATOR OF
THE ESTATE OF BENJAMIN TRULL,
Plaintiffs, Appellants,
v.
VOLKSWAGEN OF AMERICA, INC., AND
VOLKSWAGENWERK, A.G.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Joseph A. DiClerico, Jr., U.S. District Judge]
Before
Selya, Circuit Judge,
Coffin, Senior Circuit Judge,
and Pollak, Senior District Judge.*
David P. Angueira with whom Edward M. Swartz, Alan L.
Cantor, and Lisa V. Kaprielian were on brief for appellants.
Howard B. Myers with whom Bryan K. Gould was on brief for
appellees.

-- 1 of 4 --

-2-
October 17, 2000
Per curiam. Appellants sought damages from appellee
Volkswagen for injuries arising out of a car accident in
February 1991. In a previous decision, we resolved a number of
evidentiary questions arising from the trial in this diversity
case. See Trull v. Volkswagen of America, Inc., 187 F.3d 88 (lst
Cir. 1999). Appellants also challenged a jury instruction that
required them to prove, in addition to causation, "`the nature
and extent of the injuries that were enhanced’" as a result of
a defect in the vehicle’s design. Id. at 103. Appellants
argued that once they demonstrated causation, the defendants
bore the burden of apportioning damages because the enhanced
injuries at issue were indivisible from the injuries that
resulted from the underlying accident. The jury found for
Volkswagen, and we reasoned that assignment of the burden
"unquestionably may have been determinative" of the result. Id.
We noted that the question of who bears the burden in a so-
called "crashworthiness" case involving indivisible injuries had
divided courts across the country, and that the New Hampshire
Supreme Court had not yet faced the question. Id. at 100.
Concluding that placement of the burden was "quintessentially a

-- 2 of 4 --

-3-
policy judgment appropriately made for the state by its own
courts," id. at 103, we retained jurisdiction and certified the
following question to the New Hampshire Supreme Court:
Under New Hampshire law, in a crashworthiness or
enhanced injury case, does the plaintiff bear the
burden of demonstrating the specific nature and extent
of the injuries attributable to the manufacturer, or
does the burden of apportionment fall on the defendant
once the plaintiff has proved causation?
Id.
The New Hampshire Supreme Court has concluded that the
burden falls on the defendant:
In crashworthiness cases involving indivisible
injuries, we conclude that the plaintiffs must prove
that "a design defect was a substantial factor in
producing damages over and above those which were
probably caused as a result of the original impact or
collision. Once the plaintiff[s] make[] that showing,
the burden shifts to the defendant[s] to show which
injuries were attributable to the initial collision
and which to the defect." Trull, 187 F.3d at 101-02.
Trull v. Volkswagen, 2000 WL 1425142, *4 (NH Sept. 28, 2000).
Because the district court’s instruction placed the burden
on the plaintiffs, they are entitled to a new trial. We
therefore vacate the judgment of the district court and remand
the case for new proceedings consistent with both our prior
decision and the New Hampshire Supreme Court’s response to our
certified question of law.
The judgment of the district court is therefore vacated and
remanded.

-- 3 of 4 --

-4-

-- 4 of 4 --