Charles King , as Administrator of the Estate of Patti Ann King v. Ford Motor Company ; Mazda Motor Corporation

24 King, et al. v. Ford Motor Co., et al. No. 98-5960
load limiters and belt loads in the 1992 Hyundai Excel. Ford
had disclosed that its experts would rebut plaintiffs’ proffered
testimony, and Ford claimed that it was unaware prior to trial
as to the nature of Syson’s testimony.
The district court squarely rejected this argument, finding
that plaintiffs had disclosed the nature of Syson’s testimony
prior to trial. In his report, Syson stated that “a force limiter
in the torso belt” was an option available to Ford to improve
its restraint system design. At his deposition, Syson stated
that he would provide exemplars of load limiters during his
testimony. A year prior to trial, plaintiffs informed Ford that
one of those exemplars would be a load limiter used in the
Hyundai Excel. Despite these disclosures, the district court
found, Ford never divulged prior to trial that it would call any
witnesses to testify about load limiters in the Hyundai Excel.
Ford does not address the above facts in its brief before this
court nor does it provide any explanation as to why its failure
to disclose was justified. It has not demonstrated that the
district court clearly erred.
Ford next argues that it would simply be unfair to exclude
its proffered testimony. We conclude that this is not the case.
Although it was attempting to present rebuttal testimony,
Ford’s unexcused failure to disclose that its experts would
testify regarding Hyundai Excel load limiters did not allow
plaintiffs the opportunity to prepare properly for these
witnesses. Furthermore, the district court allowed one Ford
witness, Michelle Vogler, to testify about the 1992 Hyundai
Excel, stating in particular that the Escort and the Excel had
the same “chest loads.” The court thus did allow at least a
limited response to Syson’s “surprise” testimony. Again,
Ford has not demonstrated that the district court clearly erred.
VIII.
For the foregoing reasons, the judgment of the district court
is AFFIRMED.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2000 FED App. 0137P (6th Cir.)
File Name: 00a0137p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
C HARLES KING , as
Administrator of the Estate of
Patti Ann King,
Plaintiff- Appellee,
AMANDA S UE KING , by and
through her next friend
Charles King; ASSOCIATED
INSURANCE C OMPANIES,
Intervening
Plaintiffs-Appellees,
v.
FORD M OTOR C OMPANY ;
M AZDA M OTOR
C ORPORATION ,
Defendants-Appellants.
;>

1
No. 98-5960
Appeal from the United States District Court
for the Eastern District of Kentucky at London.
No. 95-00117—Jennifer B. Coffman, District Judge.
Argued: August 6, 1999
Decided and Filed: April 19, 2000

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2 King, et al. v. Ford Motor Co., et al. No. 98-5960
*The Honorable Algenon L. Marbley, United States District Judge for
the Southern District of Ohio, sitting by designation.
Before: BATCHELDER and COLE, Circuit Judges;
MARBLEY, District Judge.*
_________________
COUNSEL
ARGUED: E. Duncan Getchell, Jr., MCGUIRE, WOODS,
BATTLE & BOOTHE, Richmond, Virginia, for Appellants.
Samuel E. Davies, Barbourville, Kentucky, for Appellees.
ON BRIEF: E. Duncan Getchell, Jr., Rosewell Page, III,
MCGUIRE, WOODS, BATTLE & BOOTHE, Richmond,
Virginia, Bryan Todd Thompson, DINSMORE & SHOHL,
London, Kentucky, for Appellants. Samuel E. Davies,
Barbourville, Kentucky, for Appellees.
_________________
OPINION
_________________
R. GUY COLE, JR., Circuit Judge. Charles King,
administrator of the estate of Patti Ann King; Amanda King,
the Kings’ daughter; and the Associated Insurance Companies
(collectively “plaintiffs”), filed this suit against the Ford
Motor Company and Mazda Motor Corporation (collectively
“Ford”). Plaintiffs alleged that the passenger restraint system
in the 1992 Ford Escort in which Patti Ann King was riding
on August 21, 1994 was defective, causing her death.
Following a jury verdict in favor of the plaintiffs, Ford raised
several grounds for appeal. For the following reasons, we
AFFIRM the judgment of the district court.
No. 98-5960 King, et al. v. Ford Motor Co., et al. 23
instruction on alternative design. See Fulkerson, 812 S.W.2d at 123-24.
In fact, Kentucky’s courts believe that this instruction may confuse juries
as to the issues at stake under this doctrine. See id.
VII.
Ford finally claims that it is entitled to a new trial because
the district court erred by excluding portions of testimony
from two of Ford’s experts, Roger Maugh and Geoff
Germane. Maugh would have testified that the 1992 Escort
was not defective because it did not use a load limiter in its
restraint system, and Germane would have testified that belt
loads in the 1992 Hyundai Excel, which employed a load
limiter, were actually higher than the belt loads in the 1992
Ford Escort. The testimony purportedly would have
demonstrated that load limiters were not feasible for the 1992
Escort. The district court held that the experts’ opinions were
not admissible under Fed. R. Evid. 26 because Ford did not,
within the allotted time window, disclose that the experts
would testify about these matters. This court reviews such a
ruling for abuse of discretion. See Pedigo v. UNUM Life Ins.
Co., 145 F.3d 804, 807 (6th Cir. 1998).
Fed. R. Evid. 26(a)(2)(B) provides, in part, that a party’s
disclosure regarding an expert witness must “contain a
complete statement of all opinions to be expressed and the
basis and reasons therefor.” Fed. R. Evid. 37(c)(1), in turn,
provides that “[a] party that without substantial justification
fails to disclose information required by Rule 26(a) . . . shall
not, unless such failure is harmless, be permitted to use as
evidence at a trial, at a hearing, or on a motion any witness or
information not so disclosed.” Ford does not contend that,
prior to trial, it disclosed that its experts would testify about
load limiters in the Hyundai Excel; rather, it contends that it
had substantial justification for failing to disclose and that, in
any event, it would be fundamentally unfair to disallow the
proffered testimony. Ford claims that it was justified in
failing to make the required disclosures under Rule 26
because the testimony in question was merely offered to rebut
the “surprise” testimony of plaintiffs’ expert, Syson, regarding

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22 King, et al. v. Ford Motor Co., et al. No. 98-5960
9The trial court was not required, as a matter of federal law, to
instruct on design defect. Although the appropriateness of the
instructions is reviewed under federal procedural standards, the substance
of the instructions to the jury should be based in state law. See Persian
Galleries, Inc., 38 F.3d at 257. The Kentucky courts have clearly stated
that to fully expound the law on design defects, the jury need not hear an
Since the time Kentucky adopted the doctrine of “strict
liability” in products cases as stated in the Restatement,
Second, Torts, § 402A, in the case of Dealer’s Transport
Company v. Battery Distributing Company, Ky., 402
S.W.2d 441 (1966), the Kentucky practice has been to
state the liability issue in the terms of Restatement: Did
the defendant manufacture, sell or distribute the product
“in a defective condition unreasonably dangerous to the
user . . . ?”
. . .
In Montgomery Elevator Co. v. McCullough, Ky., 676
S.W.2d 776, 780-81 (1984), we stated:
“Considerations such as feasibility of making a safer
product, patency of the danger, warnings and
instructions, subsequent maintenance and repair,
misuse, and the products’ inherently unsafe
characteristics, while they have a bearing on the
question as to whether the product was
manufactured ‘in a defective condition unreasonably
dangerous,’ are all factors bearing on the principal
question rather than separate legal questions.”
A trial court is well advised to leave consideration of
these evidentiary factors to the arguments of counsel
rather than attempting to frame them up in the
instructions on the ultimate questions. The language
used may be confusing or misleading.
Id. The district court’s instruction in this case tracked the
language of the Restatement (Second) of Torts § 402A and
the instruction approved by Fulkerson. It was therefore
sufficient under Kentucky law, and we do not find that the
district court committed reversible error in giving that
instruction.9
No. 98-5960 King, et al. v. Ford Motor Co., et al. 3
1One of Ford’s experts described the knee bolster as “just a big pad
right down in the lower part of the instrument panel. And it was designed
so that if you got in a frontal accident, the torso belt would hold the upper
torso back but the lower torso would slide forward until the knees hit the
bolster and the bolster would, in effect, provide a mechanism for
absorbing energy in the lower torso. . . .”
I.
On August 21, 1994, Patti Ann King, Ginger Brockman,
and Erica Brockman were in Ginger Brockman’s 1992 Ford
Escort, approaching McKee, Kentucky at about thirty to
thirty-five miles per hour. King was in the front passenger’s
seat, Ginger Brockman was driving, and Erica Brockman was
in the back seat. A pickup truck traveling in the opposite
direction, driven by sixteen-year-old Brian Coyle, unwisely
attempted to turn in front of Brockman’s car, into the
driveway of a Dairy Freeze restaurant. The front of the Escort
clipped the truck, causing a Delta V, or change in velocity, in
the car on the order of twenty-seven miles per hour.
The Escort employed a “passive” or “automatic belt”
restraint system in its front seats. The system consisted of a
two-point motorized shoulder belt that automatically locked
in place when the occupant closed her door; a knee bolster
designed to restrain the lower torso;1 and a manual lap belt.
For a period of about six months, King had owned an Eagle
Talon with a similar system, and she was described as an
“avid seatbelt user.” At the time of the accident, however,
King was wearing only the automatic shoulder belt and not
the manual lap belt. She apparently had the lap belt on earlier
in the trip, but after her party stopped at the Gray Hawk store
to buy a newspaper, she failed to re-engage it.
King suffered massive injuries in the accident – several
fractured ribs and a fractured collar bone; lacerations to both
lungs; and a tear to the left auricle of her heart. She
ultimately died of a lack of oxygen to her brain as a result of
her heart and lung injuries. King’s estate alleged that her
injuries were the result of defects in the Escort’s restraint

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4 King, et al. v. Ford Motor Co., et al. No. 98-5960
2Neither Ginger Brockman nor Brian Coyle were parties to this
action. Their insurance companies settled the Kings’ claims against them.
3The Safety Act was originally codified at 15 U.S.C. § 1381 et seq.
Congress recodified the act in 1994, “‘without substantive change’ to the
underlying provisions.” Geier v. American Honda Motor Co., 166 F.3d
1236, 1237 n.2 (D.C. Cir.), cert. granted, 120 S. Ct. 33 (1999).
.
system and filed suit against Ford in the United States District
Court for the Eastern District of Kentucky on April 14, 1995.2
It asserted diversity jurisdiction and brought state-law claims
of negligence, strict liability, and breach of implied
warranties. Associated Insurance Companies intervened to
assert subrogation claims for medical expenses, and Amanda
Sue King, King’s daughter, intervened to assert loss of
consortium claims.
Before the case proceeded to trial, Ford filed a motion for
partial summary judgment, arguing that, to the extent
plaintiffs asserted that the Escort was defective because it
failed to contain an air bag, those claims were preempted by
the National Traffic and Motor Vehicle Safety Act of 1966
(“Safety Act”), now codified3 at 49 U.S.C. § 30101 et seq.,
and regulations promulgated thereunder, see 49 C.F.R.
§ 571.208 (1999) (“Standard 208”). The district court granted
this motion and plaintiffs’ remaining claims were tried before
a jury. At the close of plaintiffs’ proofs, Ford filed a motion
for judgment as a matter of law under Fed. R. Civ. P. 50,
asserting that plaintiffs’ claims were preempted in their
entirety. The district court denied this motion. The case went
to the jury on two distinct theories: that the “automatic seat
belt restraint system was defective and unreasonably
dangerous to the consumer” and that Ford failed to warn
consumers of the potential dangers associated with the
restraint system. After first being sent back for further
deliberations after returning inconsistent answers to
interrogatories, the jury found Ford liable on both claims and
No. 98-5960 King, et al. v. Ford Motor Co., et al. 21
see also Schrand, 1999 WL 540877, at *2 (defining duty as
“the exercise of ordinary care to prevent foreseeable injury
from occurring to another person”). We therefore find that
the district court did not abuse its discretion by failing to give
the requested instruction.
B.
Ford next contends that, with regard to plaintiffs’ design
defect claim, that the district court erred by failing to give an
instruction on alternate feasible designs – that is, an
instruction that the jury should determine whether there was
an alternate restraint-system design available at the time the
Escort was manufactured and whether a reasonably prudent
manufacturer would have used this alternative. The court’s
design-defect instruction was as follows:
In order to recover under her [sic] design defect claim,
the plaintiffs must establish two essential elements as
follows:
First, that when the 1992 Ford Escorts left the
possession of the defendants, the design of the automatic
seat belt restraint system was defective and unreasonably
dangerous to the consumer.
And second, that the unreasonably dangerous,
defective condition of the machine was a substantial
factor in causing the injury and death of Patti King.
As the term is used in this instruction, a design is
defective and unreasonably dangerous if it creates such
a risk of accidental injury to a prospective user that an
ordinarily prudent company engaged in the manufacture
of similar products, being fully aware of the risk, would
not have put it on the market.
In Ford Motor Co. v. Fulkerson, 812 S.W.2d 119, 122-24
(Ky. 1991), the Kentucky Supreme Court specifically
approved for use in product liability actions the very type of
bare-bones design-defect instruction used by the district court
in this case. The Fulkerson court wrote:

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20 King, et al. v. Ford Motor Co., et al. No. 98-5960
the safety purpose for the belt.” See Miller’s Bottled Gas, Inc.
v. Borg-Warner Corp., 56 F.3d 726, 736 (6th Cir. 1995)
(“[T]rial court may refuse to instruct the jury on an issue
when there has been insufficient evidence presented to
support a jury finding on that issue.”); Laugesen v. Anaconda
Co., 510 F.2d 307, 314 (6th Cir. 1975) (stating that trial court
had no obligation to instruct on a theory not pleaded by a
party and not supported by evidence); cf. Wagner v. Case
Corp., 33 F.3d 1253, 1258 (10th Cir. 1994) (approving the
refusal to give a jury instruction, in a Colorado diversity case,
where party requesting instruction offered “vague” evidence
to support its argument).
Although Ford introduced evidence and argued as to King’s
regular use of a seat belt, none of the evidence adduced by
Ford indicated that King was aware of the danger of potential
injuries, or worsened injuries, from the use of the shoulder
belt alone. See Demaree v. Toyota Motor Corp., 37 F. Supp.
2d 959, 967 (W.D. Ky. 1999) (applying Kentucky law and
finding no duty to warn because the plaintiff explicitly
testified that she knew of the danger of the car’s air bag). Nor
had Ford pointed to any objective evidence that this danger
was a matter of common knowledge. See Leonard v.
Uniroyal, 765 F.2d 560, 564 (6th Cir. 1985).
“A judgment may be reversed only if the instructions,
viewed as a whole, were confusing, misleading, or
prejudicial.” Beard v. Norwegian Caribbean Lines, 900 F.2d
71, 72-73 (6th Cir. 1990). This was not the situation in the
present case. We further note that the district court gave an
instruction stating that in order for the plaintiffs to recover on
a failure-to-warn theory, Ford’s failure to provide an adequate
warning had to be a substantial factor in causing the
decedent’s injuries. Although this instruction goes to
causation rather than duty, it adequately conveys the intent of
Ford’s requested instruction: if King had already been fully
apprized of the need to wear the lap belt – that is, she was
aware of the danger from not doing so – Ford’s failure to
warn King obviously could not have played a substantial
factor in causing her death. See Leonard, 765 F.2d at 566 n.5;
No. 98-5960 King, et al. v. Ford Motor Co., et al. 5
4The jury apportioned fault as follows: Ford, 65%; Brian Coyle,
20%; Patti King, 10%; Ginger Brockman, 5%. The estate recovered
$823,172.58, Amanda Sue King recovered $975,000.00, and Associated
Insurance Cos. recovered $49,937.58.
awarded damages in the amount of $1,848,109.84.4 Ford
renewed its motion for judgment as a matter of law and filed
a motion for a new trial, both to no avail. This timely appeal
followed.
II.
Ford first argues that plaintiffs’ claims are preempted by
federal law. This court generally reviews a district court’s
decision with regard to preemption de novo. See GTE
Mobilnet v. Johnson, 111 F.3d 469, 475 (6th Cir. 1997).
The Supremacy Clause of the United States Constitution
provides that federal law “shall be the supreme Law of the
Land . . . any Thing in the Constitution or Laws of and State
to the Contrary notwithstanding.” U.S. Const. art. VI. Thus,
as has been clear since the Supreme Court’s decision in
M’Culloch v. Maryland, 17 U.S. 316 (1819), any state law
that conflicts with federal law is “without effect.” Cipollone
v. Ligget Group, Inc., 505 U.S. 504, 516 (1992) (citing
Maryland v. Louisiana, 451 U.S. 725, 746 (1981)).
In applying the Supremacy Clause, courts “start with the
assumption that the historic police powers of the States [are]
not to be superseded by [a] Federal Act unless that was the
clear and manifest purpose of Congress.” Medtronic v. Lohr,
518 U.S. 470, 485 (1996) (citing Rice v. Santa Fe Elevator
Corp., 331 U.S. 218, 230 (1947)). Therefore, “‘[t]he purpose
of Congress is the ultimate touchstone’ in every pre-emption
case.” Id. (citing Cipollone, 505 U.S. at 516). The Supreme
Court has stated that Congress may make its intent to preempt
clear either expressly or implicitly. See Freightliner Corp. v.
Myrick, 514 U.S. 280, 287 (1995). Implied preemption, in
turn, takes two forms. “We have found implied conflict
pre-emption where it is impossible for a private party to

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6 King, et al. v. Ford Motor Co., et al. No. 98-5960
comply with both state and federal requirements, or where
state law stands as an obstacle to the accomplishment and
execution of the full purposes and objectives of Congress.” Id.
(internal citations and quotations omitted). In summary, then,
there are three types of preemption – express preemption,
implied conflict preemption, and implied field preemption.
Ford’s argument revolves around the Safety Act, and
Standard 208 promulgated thereunder. The Safety Act
authorizes the Secretary of Transportation to promulgate
Federal Motor Vehicle Safety Standards (“FMVSS”). See 49
U.S.C. § 30101. When an FMVSS is in effect, “a State or a
political subdivision of a State may prescribe or continue in
effect a standard applicable to the same aspect of performance
of a motor vehicle or motor vehicle equipment only if the
standard is identical to the standard prescribed under this
chapter.” 49 U.S.C. § 30103(b). However, the act also
contains a savings clause, which provides that “[c]ompliance
with a motor vehicle safety standard prescribed under this
chapter does not exempt a person from liability at common
law.” 49 U.S.C. § 30103(e).
The Secretary’s Standard 208, promulgated pursuant to the
Safety Act, requires passenger cars manufactured after
September 1, 1989 but before September 1, 1993, like the
Escort in this case, to comply with one of three front-seat-
occupant crash-protection options: (1) a complete passive
restraint system; (2) a passive system (automatic seat belts or
air bags) for frontal crash protection, manual belts for lateral
crashes and rollovers, and a warning system; or (3) manual
front seat belts with a warning system. See 49 C.F.R.
§ 571.208, S4.1.4-S4.1.4.2.2. Ford used option 2 -- an
automatic shoulder belt and knee bolster to protect against
frontal collisions, a manual lap belt to protect against lateral
crashes and rollovers, and a warning system.
Ford’s position is that implied conflict preemption applies
in this case. It argues that “[b]ecause federal policy [i.e. the
Safety Act and Standard 208] affirmatively required that these
three options be available to manufacturers, a state rule which
No. 98-5960 King, et al. v. Ford Motor Co., et al. 19
court characterized the requested instruction as a “legal
standard,” and, as such, not a necessary jury instruction. This
characterization is consistent with the Kentucky Supreme
Court’s indication that, under Kentucky tort law, the issue of
whether a defendant has a duty to a plaintiff is generally a
question of law to be resolved by the trial court. See Mullins
v. Commonwealth Life Ins. Co., 839 S.W.2d 245, 248 (Ky.
1992) (“The question of duty presents an issue of law.”);
Sheehan v. United Service Auto. Assoc., 913 S.W.2d 4, 6 (Ky.
Ct. App. 1996); Schrand v. Grant, No. 1997-CA-001996-MR,
1999 WL 540877, at *2 (Ky. Ct. App. July 2, 1999).
In any event, Ford failed to present sufficient evidence
warranting such an instruction. Contrary to Ford’s suggestion
on appeal, the absence of a duty to warn was not its theory of
the case. Instead, Ford consistently argued that its warnings
were adequate, a distinct issue from a lack of a duty to warn.
For example, Ford did not plead a lack of a duty to warn in its
response to King’s complaint. Likewise, in opening
arguments, Ford did not state that it would argue that it had no
duty to warn. Rather, Ford told the jury, after stating that its
warnings were adequate, that it would show that King wore
her seat belt and knew she ought to wear her seat belt,
supportive evidence for its argument that it adequately warned
King. Evidence in the case did in fact indicate that King was
an avid seat belt user, had previously worn the lap belt in
Brockman’s Escort, and had briefly owned an Eagle Talon
with a restraint system similar to that in the 1992 Escort.
Ford only raised the issue of a lack of a duty to warn when it
moved for a directed verdict on that basis, to which the trial
court responded, correctly, “I don’t know of any testimony as
to her knowledge of the danger of the product.”
The jury instructions initially submitted to the court by Ford
did not include one stating that Ford did not have a duty to
warn of a known danger. It was only after the district court
had finalized the charge when Ford requested the addition of
an instruction with this language. In its closing, Ford argued
that the court would instruct the jury that “there is a duty to
warn a person of unknown danger” and that “King knew of

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18 King, et al. v. Ford Motor Co., et al. No. 98-5960
8We recognize that two of our cases – one in unelaborated dicta and
the other unpublished – suggest that the federal district court is not
required to follow the Kentucky bare bones practice. See Robinson v.
Ralph G. Smith, Inc., 735 F.2d 186, 192 n.9 (6th Cir. 1984); Whitescarver
v. Wal-Mart Stores, Inc., No. 92-5197, 1992 WL 393172, at *3 (6th Cir.
Dec. 29, 1992). Even if we were to consider either of these cases binding,
a district court is still free to look to a state’s model jury instructions and
other authority to insure it properly instructs the jury under substantive
state law.
prejudicial”). Therefore, the district court had the option of
seeking guidance from Kentucky practice in formulating the
jury instructions.8 In fact, a federal court’s consideration of
a state’s jury instruction practice may insure that the
instructions correctly express state substantive law. See
Laney, 901 F.2d at 1321; cf. Rhea v. Massey-Ferguson, Inc.,
767 F.2d 266, 269 (6th Cir. 1985) (noting that in Michigan
the standard instructions must be given, and stating that “[t]he
district court had no duty to give the additional requested
instructions if the standard instructions, viewed as a whole,
fairly and accurately describe” state law). Finally, even if a
district court errs by failing to give a requested instruction, we
will not reverse when the error is harmless. See United States
v. Toney, 161 F.3d 404, 412-13 (6th Cir. 1998), cert. denied,
526 U.S. 1045 (1999).
A.
Ford contends that the district court erred by failing to give
an instruction stating that it had no duty to warn of known
dangers. Such an instruction would have been an accurate
general statement of Kentucky law. See Hutt, 914 F.2d at 793
(stating that under Kentucky law, “[t]here is no duty on the
part of a manufacturer to warn the user of a product when the
user is aware of the product’s danger”).
The trial court rejected Ford’s request to add a jury
instruction providing that “the defendants had no duty to warn
if Patti King knew of the lap belt and was aware of the
reasons for wearing it.” In denying the request, the district
No. 98-5960 King, et al. v. Ford Motor Co., et al. 7
found civil liability for using one of the equipment options
rather than another would be preempted.” State tort law
removing one option would obviously be “an obstacle to the
accomplishment and execution of the full purposes and
objectives of Congress,” namely the objective that
manufacturers have flexibility in choosing a restraint system.
Hines v. Davidowitz, 312 U.S. 52, 67 (1941). Ford contends
that plaintiffs’ suit would limit this flexibility, as the company
characterizes plaintiffs’ suit as one claiming that two-point,
automatic seatbelts with manual lap belts are inherently
defective. See Irving v. Mazda Motor Corp., 136 F.3d 764,
768-69 (11th Cir. 1998) (holding such a claim preempted).
We agree with plaintiffs, however, that Ford has
misconstrued their case. As plaintiffs note:
In the case at bar . . . plaintiffs’ position was not that the
design choice made by defendants for protecting against
frontal collisions – an automatic shoulder belt and knee
bolster – was inherently defective but that the specific
design was defective due to failure to use load limiters
and/or change the location of the knee bolster and/or
change the location of the belt anchor.
Such a claim is not preempted by the Safety Act. The
FMVSS provide only the “minimum standard[s] for motor
vehicle or motor vehicle equipment performance.” 49 U.S.C.
§ 30102(a)(9). The Safety Act’s savings clause, which states
that compliance with an FMVSS does not shield a
manufacturer from liability at common law, contemplates that
manufacturers may be held liable for failure to exceed these
minimum standards when their decisions were unreasonable.
This is the essence of plaintiffs’ claims.
We find Perry v. Mercedes Benz of North America, Inc.,
957 F.2d 1257 (5th Cir. 1992), to be analogous to this case.
There, plaintiff alleged that the air bag in her car had “an
unreasonably dangerous ‘deceleration velocity deployment
threshold’” despite the fact that it met the requirements of
Standard 208. Id. at 1260. In other words, plaintiff did not
challenge Mercedes’s decision to place an air bag in its cars,

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8 King, et al. v. Ford Motor Co., et al. No. 98-5960
but rather argued that the air bag should have been safer than
required by federal law. After finding that express
preemption did not apply, the court held that implied conflict
preemption did not apply either. As an initial matter, the
court found it “obvious” that there was no impossibility of
complying with both federal and state law – if state law
required a higher level of protection than federal law, a
system that complied with state requirements would satisfy
federal regulations a fortiori. The court also found that the
differing levels of protection did not create an obstacle to the
fulfilment of federal objectives.
Once the manufacturer chooses an option that includes an
air bag system, Standard 208 S5-S6 merely set forth
minimum performance requirements for that system. To
allow tort liability for the design of that system would not
remove or require any particular choice, or otherwise
frustrate “flexibility” that the federal scheme provides.
We recognize that the manufacturer who chooses to meet
only the bare minimum performance requirements will
be burdened with the potential for tort liability, but this
is the exact burden that Congress preserved in the
Savings Clause, when it stated that “[c]ompliance with
any Federal motor vehicle safety standard . . . does not
exempt any person from any liability under common
law.” Congress sought to meet its goal of minimizing
the number of deaths and injuries caused by auto
accidents by setting forth minimum standards and
leaving common law liability in place.
Id. at 1265-66. The court thus held that plaintiff’s claim was
not preempted. See id; see also Pokorny v. Ford Motor Co.,
902 F.2d 1116, 1126 (3d Cir. 1990) (“Ford’s argument that
we . . . should simply hold that all safety alternatives not
included in Standard 208 are pre-empted does not persuade
us.”); Collazo-Santiago v. Toyota Motor Corp., 957 F. Supp.
349, 353 (D.P.R.1997) (“[C]ompliance with performance
criteria does not immunize manufacturers from common law
liability arising from any defects in the production or design
of their passive restraint systems.”); cf. Sours v. General
No. 98-5960 King, et al. v. Ford Motor Co., et al. 17
901 F.2d 1319, 1321 (6th Cir. 1990) (citing Williams v. Union
Carbide Corp., 790 F.2d 552 (6th Cir. 1986)).
“Kentucky follows the ‘bare-bones’ principle in providing
instructions.” McGuire v. Commonwealth of Kentucky, 885
S.W.2d 931, 936 (Ky. 1994); see also DSG Corp. v.
Anderson, 754 F.2d 678, 681-82 (6th Cir. 1985). That is, the
jury instructions “should not contain an abundance of detail,
but should provide only the bare bones of the question for
jury determination. This skeleton may then be fleshed out by
counsel on closing argument.” Ball v. E.W. Scripps Co., 801
S.W.2d 684, 691 (Ky. 1990) (citing Rogers v. Kasdan, 612
S.W.2d 133, 136 (Ky. 1981)). The Kentucky Supreme Court
has stated that:
In conclusion, it may be well to mention that whenever
counsel feels that jurors might draw inferences that are
not warranted by the specific terminology of the
instructions, his opportunity to guard against it comes in
the closing argument. If instructions are to be kept
concise and to the point, as they should be, their
supplementation, elaboration and detailed explanation
fall within the realm of advocacy. Contrary to the
practice in some jurisdictions, where the trial judge
comments at length to the jury on the law of the case, the
traditional objective of our form of instructions is to
confine the judge’s function to the bare essentials and let
counsel see to it that the jury clearly understands what
the instructions mean and what they do not mean.
Young v. J.B. Hunt Transp., Inc., 781 S.W.2d 503, 506-07
(Ky. 1989) (quoting Collins v. Galbraith, Ky., 494 S.W.2d
527, 531 (Ky. 1973)).
In sum, the federal district court had discretion to instruct
the jury in any manner it deemed appropriate, as long as it
correctly stated Kentucky’s substantive law, instructed on the
issues relevant to the case at hand, and did not mislead the
jury. See Davis v. Mutual Life Ins. Co., 6 F.3d 367, 373 (6th
Cir. 1993) (requiring reversal “only where the instructions,
considered as a whole, are confusing, misleading, or

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16 King, et al. v. Ford Motor Co., et al. No. 98-5960
7Ford also argues that the form of the question used by the district
court – asking whether Juror 12 agreed with the verdict – was improper
and that the question was “legally meaningless.” This argument is
without merit. If a trial court decides to poll the jury, it has substantial
discretion in determining the manner of polling. See Audette, 789 F.2d at
959-60. “Unless the trial judge’s interrogation serves to coerce a reluctant
juror into changing his vote, any formulation that [serves to ascertain that
the verdict was unanimous] is permissible.” Green v. Zant, 738 F.2d
1529, 1537-38 (11th Cir. 1984).
this case, the district court’s limited questioning of Juror 12
was proper and not coercive.7
VI.
Ford next contends it is entitled to a new trial because the
district court erred by failing to give two of its requested
instructions. This court reviews a district court’s refusal to
give requested jury instructions under an abuse of discretion
standard. See Buziashvili v. Inman, 106 F.3d 709, 715 (6th
Cir. 1997). We review jury instructions “as a whole in order
to determine whether [the instructions] adequately inform the
jury of relevant considerations and provide a basis in law for
aiding the jury to reach its decision.” Gafford v. General
Elec. Co., 997 F.2d 150, 166 (6th Cir. 1993) (quoting Beard
v. Norwegian Caribbean Lines, 900 F.2d 71, 72 (6th Cir.
1990)).
In a diversity action, state law determines the substance of
the jury instructions; however, questions regarding the
propriety of the instructions are governed by federal
procedural law. See Persian Galleries, Inc. v.
Transcontinental Ins. Co., 38 F.3d 253, 257 (6th Cir. 1994).
In addition, trial courts have broad discretion in framing jury
instructions. See United States v. Moore, 129 F.3d 873, 876-
77 (6th Cir. 1977); see also Scamardo v. Scott County, 189
F.3d 707, 711 (8th Cir. 1999); Jennings v. BIC Corp., 181
F.3d 1250, 1254 (11th Cir. 1999). “It is the better practice for
a federal court sitting in diversity to use state approved jury
instructions” in order to accurately instruct the jury on the
appropriate state substantive law. Laney v. Celotex Corp.,
No. 98-5960 King, et al. v. Ford Motor Co., et al. 9
Motors Corp., 717 F.2d 1511, 1516-17 (6th Cir. 1983)
(“[T]he very federal safety statute upon which GM relies
makes it abundantly clear that compliance with the
regulations promulgated thereunder does not immunize a
manufacturer from common law liability.” (citing 15 U.S.C.
§ 1397(c) (1976))). We hold that the plaintiffs’ claims in this
case similarly are not preempted.
III.
Ford next argues that plaintiffs’ evidence was insufficient
to support a verdict on either their product defect theory or
their failure-to-warn theory. In diversity cases, this court
applies a state-law standard of review to motions for
judgment as a matter of law which challenge the sufficiency
of the evidence necessary to support the jury's verdict. See
Morales v. American Honda Motor Co., 151 F.3d 500, 506
(6th Cir. 1998). Under Kentucky law, the applicable standard
of review is as follows:
Under Kentucky law, a motion for a directed verdict –
the same thing as a motion for judgment as a matter of
law under Rule 50, Fed. R. Civ. P. – should be granted
only if “there is a complete absence of proof on a
material issue in the action, or if no disputed issue of fact
exists upon which reasonable minds could differ.”
Washington v. Goodman, 830 S.W.2d 398, 400 (Ky.
App. 1992). In deciding such a question, “every
favorable inference which may reasonably be drawn from
the evidence should be accorded the party against whom
the motion is made.” Baylis v. Lourdes Hosp., Inc., 805
S.W.2d 122, 125 (Ky. 1991).
Id. (quoting Adam v. J.B. Hunt Transp., Inc., 130 F.3d 219,
231 (6th Cir. 1997)).
A.
We turn first to the sufficiency of the evidence in plaintiffs’
product defect claim. Following the Restatement (Second) of
Torts § 402A, Kentucky imposes strict liability when the

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10 King, et al. v. Ford Motor Co., et al. No. 98-5960
“‘design itself selected by the manufacturer amounted to a
defective condition which was unreasonably dangerous.’”
Morales v. American Honda Motor Co., 71 F.3d 531, 536
(6th Cir. 1995) (citing Nichols v. Union Underwear Co., 602
S.W.2d 429, 433 (Ky. 1980)). The plaintiff has the burden,
however, to establish causation under the substantial factor
test – that is, plaintiff must prove that the defendant’s conduct
was a substantial factor in bringing about plaintiff’s harm. Id.
at 537 (citing Deutsch v. Shein, 597 S.W.2d 141, 144 (Ky.
1980); Huffman v. SS. Mary & Elizabeth Hosp., 475 S.W.2d
631, 633 (Ky. 1972)). Plaintiff may use circumstantial
evidence, and “in that situation, ‘the evidence must be
sufficient to tilt the balance from possibility to probability.’”
Id. (citing cases).
Ford contends that “the plaintiffs here presented no
testimony upon which a jury could find that King’s injuries
were caused by belt loading that exceeded her tolerances.
That was left to sheer speculation and surmise.” Ford focuses
on the testimony of two of plaintiffs’ experts, Syson and
Lafferty. Syson testified that King would have had a belt load
of 1,100 to 1,300 pounds during the accident and that this was
“right at her tolerance level,” as a 138 lb. woman. Ford also
claims that Lafferty testified that a woman’s tolerance level is
higher than 1,100 to 1,300 lbs. Thus, the company contends
that neither testified that the belt load in this case exceeded
the decedent’s tolerance level. Ford therefore contends that
plaintiffs failed to prove causation in this accident.
We reject this argument. As an initial matter, Ford distorts
Lafferty’s testimony. Ford claims that “Dr. Lafferty testified
that the human tolerance belt loads for a female would range
between 1,400-1,600 pounds.” In reality, Lafferty testified,
consistent with Syson, that this 1,400-1,600 lb. figure
represented the average tolerance level for “a 50 percentile
male.” Lafferty did not give a figure for the average woman’s
tolerance level – or for the decedent’s tolerance level, for that
matter – but did testify that the thresholds are lower for
women than for men. Second, as plaintiffs note, the evidence
indicated that “there is great variation from one person to the
No. 98-5960 King, et al. v. Ford Motor Co., et al. 15
31(d); Grossheim v. Freightliner Corp., 974 F.2d 745, 752-53
(6th Cir. 1992) (affirming grant of new trial when polling
revealed that juror only assented to verdict so that she “could
go home”). There is a line of cases from other circuits that
holds that it is error for a district court to force a juror who
has expressed reluctance with a verdict during a jury poll to
cast his or her vote in open court without further deliberation
in the jury room. See, e.g., United States v. Edwards, 469
F.2d 1362, 1366 (5th Cir. 1972) (finding reversible error
when judge demanded that juror state whether or not the
verdict was hers when she initially indicated that the verdict
was hers, but that she was “still in doubt”). However, a
judge’s limited questioning of a juror regarding a poll answer
is not coercive or otherwise erroneous if used simply to clear
up ambiguity in the juror’s answer. See id. at 1367 n.5
(finding a “limited exception to the bar of questioning from
the bench” when it is apparent that the juror was confused
about a poll question or when the “juror’s dissent has resulted
from an inadvertent slip of the tongue”); Williams v. United
States, 419 F.2d 740, 746 (D.C. Cir. 1969) (“There is a
distinction in law and in fact between actions of the trial judge
to obtain clarity in place of confusion, and actions that
produce a likelihood that a juror has been coerced.”). Here,
the situation that precipitated the district court’s questions
was confusing. The jury was leaving the courtroom, the
judge’s microphone was not on at first, and there is some
indication that Juror 12 was having trouble hearing the judge.
Furthermore, the district court stated, in denying Ford’s
motion for a new trial based on this issue, that Juror 12
appeared “perplexed.” See United States v. Brooks, 420 F.2d
1350, 1353 (D.C. Cir. 1969) (noting that “the trial judge is in
a much better position than an appellate tribunal to determine
whether a recalcitrant juror’s eventual acquiescence in a
verdict was in fact freely given”). Under the circumstances of

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14 King, et al. v. Ford Motor Co., et al. No. 98-5960
6Under Fed. R. Crim. P. 31(d) a party in a criminal case has the right
to have the jury polled. Although jury polling clearly does take place in
civil trials, see, e.g., Grossheim, 974 F.2d at 748, there is no express
provision for polling in the Federal Rules of Civil Procedure. See Audette
v. Isaksen Fishing Corp., 789 F.2d 956, 959 (1st Cir. 1986). It is
apparently an unsettled question as to whether a party has a right to
demand a jury poll in a civil case. See id. In any event, in civil cases
when there are questions as to polling procedure, courts apparently look
to criminal cases for guidance. See, e.g., id. at 958-60.
whether the verdict represented his or her answer.6 Rather
than answering yes or no, Juror 12 answered “Here.” The
court apparently thought that all of the jurors had said yes,
and dismissed the jury. As the members were leaving,
however, the court reporter alerted the court to Juror 12's
anomalous answer. The court stopped the jury, and the
following exchange occurred:
THE COURT: All right. I need to know from you
whether the verdict that was rendered represents your
own verdict. Yes or no?
A JUROR: No.
THE COURT: I’m sorry?
A [DIFFERENT] JUROR: He can’t hear you.
THE COURT: I’m sorry I don’t have the microphone
on. I need to know whether the verdict that was returned
represents your verdict?
A JUROR: No.
THE COURT: Do you by saying no, are you saying that
you do not agree with the verdict?
A JUROR: I agree with it, yeah, all of it.
THE COURT: All right. What do you mean when you
say that you say it’s not your verdict? I just want to
know if you agree with it or not agree with it.
A JUROR: I agree with it, what we put down.
Ford’s position is that the court coerced Juror 12 into giving
his consent to the verdict. Generally, the proper procedure
when a poll indicates that unanimity with a verdict is
uncertain is to return the jury to the jury room for further
deliberations or to declare a mistrial. Cf. Fed. R. Crim. P.
No. 98-5960 King, et al. v. Ford Motor Co., et al. 11
next” with regard to the amount of force that they can tolerate.
Therefore, one should not interpret Syson’s statement that the
belt loads were “right at her tolerance level” as an indication
that the belt loads did not exceed the decedent’s tolerance
level. Finally, circumstantial evidence strongly supports the
plaintiffs’ case. After the accident, the decedent was found
turning blue with the seat belt cutting into her neck and chest.
The belt had to be cut to relieve the pressure. There is
testimony that her injuries were typical of those caused by
restraint systems. Additionally, plaintiffs’ experts eliminated
other possible sources -- there was no evidence that the
decedent impacted the windshield or the dashboard, with the
exception of her hand and possibly her knee. There was
certainly sufficient evidence in this case whereby a jury could
have concluded that decedent’s injuries were caused by
excessive belt loads.
B.
Ford also contends that there was insufficient evidence for
the jury to find that the warnings in the 1992 Escort were
defective and a substantial factor in causing the decedent’s
injuries. Specifically, Ford claims that the evidence in the
case demonstrates that the danger of not wearing the lap belt
was known to the decedent and that the warnings located in
the Escort as to that danger were adequate.
Ford is correct that in Kentucky there is no duty to warn of
a known danger. See Hutt v. Gibson Fiber Glass Prods., Inc.,
914 F.2d 790, 793 (6th Cir. 1990); Demaree v. Toyota Motor
Corp., 37 F. Supp. 2d 959, 967 (W.D. Ky. 1999). The
evidence here demonstrated that the decedent was an avid seat
belt user and that she had in fact been wearing the lap belt in
the Escort earlier in the day.
The jury, however, may have permissibly concluded from
the evidence in this case that the decedent was aware that not
wearing the lap belt would reduce the effectiveness of the
restraint system in preventing injuries caused by hitting the
dashboard or the like, but that she was not aware that the
failure to wear the belt could lead to deadly injuries caused by

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12 King, et al. v. Ford Motor Co., et al. No. 98-5960
the shoulder harness, even in a relatively minor accident.
Therefore, we cannot conclude, as a matter of law, that the
decedent was aware of the danger involved in this case.
Nor can we conclude that the Escort’s warnings were
adequate as a matter of law. The warning located on the
Escort’s visor stated:
IMPORTANT FOR YOUR SAFETY
Following these instructions will greatly improve your
chances of avoiding severe injury in case of an accident.
Be sure the shoulder belt buckle is engaged.
Always wear your lap belt when the car is moving. If a
lap belt cannot be worn, you should move the seat
forward so your knees are as close to the instrument
panel as possible.
Under Kentucky law, a warning “must be fair and adequate,
to the end that the user, by the exercise of reasonable care on
his own part, shall have a fair and adequate notice of the
possible consequences of use or even misuse.” Post v.
American Cleaning Equip. Corp., 437 S.W.2d 516, 520 (Ky.
App. 1968) (citing 76 A.L.R.2d 9, 37 (1961)). While the
warning in this case does indicate that following its advice
will “improve your chances of avoiding severe injury in case
of an accident” it does not indicate that misuse could lead to
severe injury caused by the shoulder belt itself. It was
certainly within the jury’s prerogative to conclude that the
warning in this case did not adequately convey the dangers
involved. Post provides:
As an example, it may be doubted that a sign warning,
“Keep off the Grass,” could be deemed sufficient to
apprise a reasonable person that the grass was infested
with deadly snakes. In some circumstances a reasonable
man might well risk the penalty of not keeping off the
grass although he would hardly be so daring if he knew
the real consequences of his failing to observe the
warning sign. Or, a warning to “Keep in a Cool Place”
might not be sufficient if the result of nonobservance was
a lethal explosion of the container.
No. 98-5960 King, et al. v. Ford Motor Co., et al. 13
5The verdict had to be unanimous in this diversity civil case because
the court gave a unanimity instruction. See Grossheim v. Freightliner
Corp., 974 F.2d 745, 753 (6th Cir. 1992).
Id. at 520. We affirm the district court on this issue.
IV.
Ford next argues that the district court erred by failing to
order a new trial when the jury returned with inconsistent
interrogatory answers. Fed. R. Civ. P. 49(b) provides that
when the jury so returns, the court should send the jury back
for further deliberations or order a new trial. Ford moved for
the latter, but the district court did the former.
This issue requires little discussion. “In deciding at what
point further deliberations by a particular jury would be
fruitless or unduly coercive, the trial judge has wide
discretion.” United States v. Stevens, 177 F.3d 579, 583 (6th
Cir. 1999). Ford provides absolutely no case law or reasoning
to support its claim that resolving the inconsistency in the
jury’s initial answers to the interrogatories required not
merely a correction, but a change in the jury’s conclusions.
Cf. United States v. Vazquez-Rivera, 135 F.3d 172, 177 (1st
Cir.1998) (“Painting black lines on the sides of a horse and
calling it a zebra does not make it one.”).
V.
Ford next argues that it was entitled to a new trial because
of defects in the jury verdict. This court reviews for abuse of
discretion a district court’s denial of a motion for a new trial.
See United States v. Rapanos, 115 F.3d 367, 372 (6th Cir.
1997).
Ford claims that the verdict in this case was not
unanimous.5 After the jury returned following further
deliberations, each member of the jury was polled as to

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