Sharon Ranell Grimes v. Mazda North American Operations; Ford Motor Company

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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2004 FED App. 0013P (6th Cir.)
File Name: 04a0013p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
SHARON RANELL GRIMES,
Plaintiff-Appellant,
v.
MAZDA NORTH AMERICAN
OPERATIONS; FORD MOTOR
COMPANY,
Defendants-Appellees.
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No. 01-6305
Appeal from the United States District Court
for the Western District of Kentucky at Bowling Green.
No. 97-00095—Thomas B. Russell, District Judge.
Argued: September 11, 2003
Decided and Filed: January 13, 2004
Before: MERRITT, GILMAN, and SUTTON, Circuit
Judges.
_________________
COUNSEL
ARGUED: Lance W. Turner, CARROLL LAW OFFICES,
Monticello, Kentucky, for Appellant. Charles E. English, Jr.,
ENGLISH, LUCAS, PRIEST & OWSLEY, Bowling Green,
2 Grimes, et al. v. Mazda North
Am. Operations, et al.
No. 01-6305
1Although Grimes’ lawyer, Tho mas E. C arroll, also filed a Notice of
Appeal on behalf of Grimes’ daughter and listed her in the style of the
case, the daughter was dismissed as a plaintiff below and she is not
mentioned in the appellate brief. Thus, we have no basis to adjudicate a
claim by the daughter.
Kentucky, for Appellees. ON BRIEF: Lance W. Turner,
Thomas E. Carroll, CARROLL LAW OFFICES, Monticello,
Kentucky, for Appellant. Charles E. English, Jr., David W.
Anderson, ENGLISH, LUCAS, PRIEST & OWSLEY,
Bowling Green, Kentucky, for Appellees.
_________________
OPINION
_________________
MERRITT, Circuit Judge. This products liability action
presents an appeal from a jury verdict in favor of defendants
Mazda and Ford and against plaintiff Sharon Grimes after a
rollover truck accident in Kentucky left Grimes a
quadriplegic.1 She alleges that two defects in the truck
caused her injuries: (1) the truck’s design gave it a high
propensity to rollover under reasonably foreseeable
circumstances, and (2) the seat belt unlatched during the
accident. On appeal, Grimes contends that the district court
did not have proper jurisdiction over the claims, made
erroneous evidentiary rulings and gave erroneous jury
instructions on apportionment of damages. Specifically, she
raises the following issues: (1) the district court should have
remanded the case to the state court because it no longer had
subject-matter jurisdiction over the case when the
Commonwealth of Kentucky was added as a party because
(a) the court’s diversity jurisdiction was destroyed and (b) the
Commonwealth is immune from suit under the Eleventh
Amendment; (2) the trial court erred in instructing the jury on
apportionment of fault (a) against the Commonwealth of
Kentucky because the Commonwealth is immune from

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No. 01-6305 Grimes, et al. v. Mazda North
Am. Operations, et al.
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2The Mazda B230 0 pickup is essentially the same as the Ford Ranger
Series pickups and much of the discussion at trial related to the Ford
Ranger Series.
liability and (b) against the driver of the truck because
plaintiff’s claim was an “enhanced injury” claim; and (3) the
trial court erred in admitting evidence concerning (a) drug and
alcohol use on the night of the accident by both plaintiff and
the truck’s driver and (b) other accidents involving similar
vehicles for the purpose of establishing notice to defendants
of a potential defect in the seat belt, but not for the purpose of
establishing a design defect in the seat belt.
For the following reasons, we affirm the judgment of the
district court.
I.
FACTS
Defendant Ford Motor Company is the parent corporation
of defendant Mazda North American Operations. On July 21,
1995, plaintiff Sharon Grimes, 24 years old, was a passenger
in a 1994 Mazda B2300 pickup truck. The truck was
manufactured by Ford and distributed by Mazda.2 It was
owned by Norma Bergeron but was being driven that night by
her daughter, Lisa Gutierrez. Grimes, Gutierrez, and another
friend, April Shae Dyer, had been riding around in the truck
before the accident. Grimes was drinking beer, and there is
also evidence that she and Gutierrez may have used cocaine
and smoked marijuana before the accident as well. Plaintiff
and Gutierrez dropped off Dyer around midnight, and plaintiff
then purchased more beer.
The accident occurred as Gutierrez and plaintiff were
traveling on Highway 704 in Adair County, Kentucky, a rural
area. Gutierrez had not driven on the road before that night.
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Am. Operations, et al.
No. 01-6305
Gutierrez was driving about 50-55 mph, within the speed
limit, when she came upon a curve in the road. The truck
spun; and, as she tried to correct for the spin, she lost control
of the truck. Gutierrez testified that her wheels may have
gone off the pavement. The truck tipped over and slid on the
passenger side, landing upside down. Gutierrez was
suspended upside down in the truck by her seat belt, but she
was unhurt. Grimes was upside down on the passenger side
of the truck, her head against the roof and her legs against the
windshield. As a result of the accident, she is a ventilator-
dependent quadriplegic.
A team of two emergency medical technicians responded
to the accident. Both testified that plaintiff was conscious and
able to talk to them. The two responding technicians gave
conflicting testimony at trial as to whether plaintiff was
wearing her seat belt when they arrived. One of the
responding emergency medical technicians testified that when
he arrived at the accident scene, plaintiff, on the passenger
side of the now-upside down truck, had her right arm
entangled in the shoulder strap of a seat belt. The other
responding technician testified that plaintiff was not
entangled in her seatbelt, and he further testified that plaintiff
told him that she had not been wearing her seatbelt. She also
told him that she had consumed alcohol, cocaine and
marijuana before the accident. Plaintiff also told the
emergency room nurse that first treated her that she had not
been wearing her seat belt and that she had consumed drugs
and alcohol before the accident. Another nurse present in the
emergency room when plaintiff arrived confirmed that
plaintiff said she had not been wearing her seatbelt. In
contrast to her statements the night of the accident, plaintiff
testified at trial that she always wore her seat belt and was
wearing it the night of the accident.
Also giving differing accounts of the situation at different
times was the driver, Lisa Gutierrez. At the time of the
accident, Gutierrez told the responding state trooper that both

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No. 01-6305 Grimes, et al. v. Mazda North
Am. Operations, et al.
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she and plaintiff had been wearing their seat belts at the time
of the accident. However, Gutierrez testified at trial that
plaintiff was not entangled in her seat belt after the accident.
In addition, the responding officer testified that he tested
Gutierrez and she was not intoxicated at the time of the
accident. Her blood alcohol level was consistent with her
testimony that she had consumed one or two beers.
At trial, both sides presented expert testimony about the
rollover propensities of the Ford Ranger/Mazda pickup truck.
Defendants’ expert testified that the likely cause of the
rollover was that the left wheels of the truck left the roadway.
The expert concluded that under the same conditions (curve
in the road and driving at about 55 mph), many cars and light
trucks would experience a rollover if the driver-side wheels
left the road. Another expert for Ford/Mazda testified that
this particular truck does not experience rollovers anymore
frequently than other similar vehicles.
Plaintiff’s expert testified that there was no evidence that
the truck’s tires had left the road, and it was his opinion that
the truck was on the road when it flipped over. Another
expert for the plaintiff testified that the type of suspension in
this model of truck enhances the propensity to rollover
because it raises the center of gravity. He testified that design
changes to the wheel rims, use of smaller tires and switching
to different shock absorbers would make the vehicle much
less likely to rollover under dry, flat pavement conditions.
Both sides also presented expert testimony about whether
the seat belt was defective, thereby causing it to unlatch
during the rollover. Defendants presented two experts, both
of whom testified that they did not find any marks on the
passenger-side seat belt (plaintiff was in the front passenger
seat) that would likely have been present if plaintiff had been
wearing her seat belt at the time of the accident. One of
defendant’s experts testified that the condition of the
passenger side seat belt indicates that it was in the “stowed”
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Am. Operations, et al.
No. 01-6305
position at the time of the accident. The seat belt worn by the
driver, Gutierrez, showed the expected signs of having been
in use during the accident. Based on their findings,
Ford/Mazda’s experts concluded that plaintiff was not
wearing her seat belt at the time of the accident.
Conversely, plaintiff presented expert testimony on
“inertial unlatching,” where the button that releases the belt
is subjected to forces during the accident that cause the button
to move to the position it would be in if pressed to unlatch by
the user. One of plaintiff’s experts, an engineer, testified that
the bracket that anchored the seat belt to the frame of the
truck was bent as if the seat belt had been in use during the
accident. His opinion was that plaintiff had been wearing her
seat belt at the time of the accident. Plaintiff’s other seat belt
expert testified that the wear on the seat belt in question was
consistent with the belt having been in use for at least part of
the rollover accident and his opinion was that the belt came
unlatched during the rollover. Finally, a forensic pathologist
testified that had plaintiff’s seat belt been on and stayed on
during the accident and if the truck had not rolled over, she
would not have suffered such a serious injury.
The action was originally filed on May 28, 1996, in Adair
(KY) Circuit Court against Lisa Gutierrez, the driver,
Gutierrez’s mother, Norma Bergeron, who owned the truck at
the time of the accident, Larry Bergeron, who is Gutierrez’s
father, and Meridian Mutual Insurance Company. Larry
Bergeron was dismissed shortly thereafter. An amended
complaint was filed adding Mazda and Ford as defendants six
weeks later. Plaintiff alleged theories of negligence, breach
of warranty and strict liability. Defendants removed the case
to the Western District of Kentucky based on diversity of
citizenship, 28 U.S.C. § 1332. After learning that plaintiff
had filed an action against the Commonwealth in the
Kentucky Board of Claims alleging that her injuries were
caused by the Commonwealth’s negligence in maintaining,
designing and constructing its roads and for failing to warn of

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Am. Operations, et al.
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a known dangerous curve, defendants filed a third-party
complaint pursuant to Federal Rule of Civil Procedure 14(a)
against the Kentucky Transportation Cabinet, Department of
Highways, seeking apportionment of fault and contribution
under Kentucky law. Plaintiff moved to remand the case,
arguing that joining the Commonwealth as a third-party
defendant destroyed the federal court’s diversity jurisdiction
and violated the Eleventh Amendment to the United States
Constitution. The district court denied the motion to remand
and trial ensued.
After a 19-day trial, the jury returned a verdict in favor of
defendants, finding that plaintiff was not wearing her seat belt
at the time of the accident and that the truck was not
defective. Plaintiff timely appealed that verdict. Because the
jury found that plaintiff was not wearing her seat belt at the
time of the accident, it did not make a finding concerning
whether there was a defect in the seat belt. The jury also
found that the truck was not defective and, following the
instructions by the court and the verdict form, it answered no
further questions as to that issue. Finally, because it found no
liability on the part of defendants, no damages were awarded
and the jury did not answer the questions on the verdict form
regarding apportionment of damages.
II.
DISCUSSION
A. Joining the Kentucky Department of Transportation
as a Third-Party Defendant Did Not Destroy the Federal
Court’s Subject-Matter Jurisdiction
Defendants impleaded the Kentucky Department of
Transportation as third-party defendants after they discovered
that plaintiff had brought a separate action against the
Department in the Kentucky Court of Claims for failure to
warn about an existing road hazard and thereby causing or
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Am. Operations, et al.
No. 01-6305
3Federal Rule of C ivil Procedure 14(a) states:
At any time after the commencem ent of the action a defending
party, as a third-party plaintiff, may cause a summons and
complaint to be served upon a person not a party to the action
who is or may be liable to the third-party plaintiff for all or part
of the plaintiff's claim against the third-party plaintiff.
contributing to the accident. Under Kentucky law, only by
bringing a third-party claim against the Department could
defendants seek contribution from it for any damages
awarded to plaintiff. Based on the joinder, plaintiff moved to
remand the case to state court, arguing that joining the
Department destroyed complete diversity and robbed the
federal court of subject matter jurisdiction. The district court
denied the motion, citing Kentucky law that requires that, in
order to receive an apportionment instruction, a claim must be
made against the alleged wrongdoer, even if there is no legal
right to recover from that wrongdoer. As the district court
noted, “the practice is to bring the alleged wrongdoer into the
case by a third party complaint only to then have it dismissed.
This sets up a possible apportionment instruction.” D. Ct.
Order, dated Mar. 8, 2000.
Plaintiff’s argument that the complete diversity necessary
for subject-matter jurisdiction under 28 U.S.C. § 1332 was
destroyed when defendants brought a claim against the
Commonwealth is without merit. Third-party claims by
defendants for contribution against a third-party under Federal
Rule of Civil Procedure 14(a)3 generally do not require an
independent jurisdictional basis. Instead, such claims fall
within the court’s supplemental jurisdiction if the impleaded
defendant’s actions share a “common nucleus of operative
fact” with the case already before the court.
It is well settled that supplemental jurisdiction exists over
a properly brought third-party complaint. King Fisher
Marine Serv., Inc. v. 21st Phoenix Corp., 893 F.2d 1155,

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No. 01-6305 Grimes, et al. v. Mazda North
Am. Operations, et al.
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1161 (10th Cir. 1990) (“A court has ancillary jurisdiction of
a defendant’s proper Rule 14(a) claim against a third-party
defendant without regard to whether there is an independent
basis of jurisdiction, so long as the court has jurisdiction of
the main claim between the original parties.”); 6 Charles Alan
Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice
and Procedure, § 1444, at 321 (2d ed. 1990) (“The cases on
point almost all hold that defendant’s claim against a
third-party defendant is within the ancillary jurisdiction of the
federal courts.”).
The supplemental jurisdiction provision, 28 U.S.C.
§ 1367(b), states congressional intent to prevent original
plaintiffs– but not defendants or third parties--from
circumventing the requirements of diversity. See H.R. Rep.
No. 101-734, at 29 (1990), reprinted in 1990 U.S.C.C.A.N.
6860, 6875 (explaining that the purpose of § 1367(b) is to
prevent “plaintiffs [from being able] to evade the
jurisdictional requirement of 28 U.S.C. § 1332 by the simple
expedient of naming initially only those defendants whose
joinder satisfies section 1332' s requirements and later adding
claims not within original federal jurisdiction against other
defendants who have intervened or been joined on a
supplemental basis.”). By contrast, “[b]ecause defendants are
involuntarily brought into court, their [claims a]re not deemed
as suspect as those of the plaintiff, who is master of his
complaint.” United Capitol Ins. Co. v. Kapiloff, 155 F.3d
488, 493 (4th Cir. 1998); see also North American Stainless
v. PNC Bank, Kentucky, Inc., No. 99-5730 at **2 n.4, 2000
WL 1256898 (6th Cir. July 13, 2000) (affirming case where
district court exercised supplemental jurisdiction over third-
party defendant that was not diverse from original plaintiff).
Here, the parties to the original action and the amended
complaint were all diverse. The addition of the
Commonwealth as a third-party defendant clearly arises from
the “same nucleus of operative fact” because plaintiff had
alleged that the accident was caused, at least in part, by
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Am. Operations, et al.
No. 01-6305
Kentucky’s failure to adequately warn drivers about a known
dangerous road. Accordingly, diversity was not destroyed
when the Department was added as a third-party defendant
and the district court properly retained subject-matter
jurisdiction. True, as plaintiff notes, intervention or joinder
of a non-diverse and indispensable party at some point after
removal may defeat the court’s diversity jurisdiction. But in
this instance plaintiff argues exactly the opposite — that the
Kentucky DOT was an improper party subject to Eleventh
Amendment immunity and against whom fault could not be
apportioned.
Plaintiff also contends that the fact that the Department was
immune from suit under the Eleventh Amendment destroyed
diversity jurisdiction when it became a party. The defendants
raised the Eleventh Amendment as an affirmative defense,
and this defense does not raise a jurisdictional question here
for purposes of diversity. The district court properly
dismissed the Department from the suit on Eleventh
Amendment grounds, and, as stated in its order, recognized
that defendants joined the Department solely to allow them to
seek an instruction apportioning fault to the state if the
evidence warranted.
B. Evidentiary Rulings
1. Evidence Relating to Drug and Alcohol Use
Plaintiff claims that the district court erred in allowing the
introduction of evidence of drug and alcohol use by Gutierrez,
the driver, and plaintiff herself, on the night of the accident
because such evidence was irrelevant. Evidence that plaintiff
used drugs and alcohol on the night of the accident was
relevant because testimony was given at trial that she told one
of the responding emergency medical technicians and the
emergency room nurse that she was not wearing her seatbelt
that evening. Plaintiff testified at trial that she always wore
her seatbelt and was wearing it at the time of the accident.

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Am. Operations, et al.
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Alcohol or drug use before the accident could have impaired
plaintiff’s memory of the evening or caused her to not use a
seatbelt even if she normally would use it. The district court
therefore properly ruled that the evidence went to the weight
of plaintiff’s testimony about her seat belt use the night of the
accident.
As to Gutierrez, the driver, the court ruled that the evidence
of her drug and alcohol use on the night of the accident went
to the credibility of her testimony describing the accident. As
the driver of the truck and a defendant in the case, evidence
that she was under the influence of drugs or alcohol was
clearly relevant. It may have caused or contributed to the
accident.
2. Limiting the Purpose for Which Evidence of Similar
Accidents Could Be Used
Plaintiff introduced evidence from persons involved in
other accidents where the seat belt latch in the vehicle was
defective. The district court ruled that such evidence could be
used only for the purpose of providing notice to the
manufacturer of a possible defect, not as evidence that the
product was defective. We believe that the court ruled
correctly on this point. But, even if there were error, the error
had no effect. The jury returned a special verdict that plaintiff
was not wearing her seatbelt and that this, not design defect,
may have been a cause of her injury.
C. Instructing the Jury on Apportionment of Fault
Plaintiff’s appeal of the apportionment instructions is moot
because the jury found no liability against defendants. See
Adam v. J.B. Hunt Transport, Inc., 130 F.3d 219, 227 (6th
Cir. 1997).
For the foregoing reasons, the judgment of the district court
is affirmed.

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