Recent Blog Posts in May 2011

The Nevada Supreme Court addressed issues of seatbelt evidence and violations of pretrial motions in limine in Roth v. BMW, 127 Nev. Adv. Op. No. 11 (April 14, 2011).

The case involved a single car rollover in which the Plaintiff, Alyson Roth, was rendered a paraplegic. Roth was a passenger in a 1987 BMW 528e, and she was sleeping in a reclined position in the front passenger seat when the car strayed onto the shoulder, swerved back across the road, and rolled 2.5 times before coming to rest on its roof. Roth was ejected from the vehicle and suffered severe injuries to her spine.

Roth sued the driver of the vehicle for negligence, and BMW for strict product liability. Roth's theory against BMW was that the car's safety restraint was defective and allowed her to be ejected from the vehicle. Roth and the driver of the car both claimed that Roth was wearing her seatbelt at the time of the accident.

In a pretrial motion in limine, Roth moved to preclude BMW from introducing evidence that Roth was not wearing her seatbelt. Roth based this motion on Nevada's seatbelt statute, NRS 484D.495, which requires that an adult wear a seatbelt but that failure to wear a seatbelt "may not be considered as negligence [or] misuse or abuse of a product or as causation in any [civil] action." NRS 484D.495(4). BMW argued that the statute could not prohibit evidence of seatbelt nonuse where the plaintiff sought damages for enhanced injuries due to defects in the safety restraint system.

The Court ruled that Roth had to show that she was wearing her seatbelt at the time of the accident, so BMW could introduce evidence of nonuse of the seatbelt. However, the Court crafted a limiting instruction, given before opening statements and again before deliberation: "BMW [will introduce] [has introduced] evidence the Plaintiff was not wearing her seatbelt. This evidence may be considered by you in evaluating Plaintiff's claim against BMW that the subject vehicle was defective and unreasonably dangerous. You may not consider this evidence for any other purpose."

In opening statements, BMW's attorney stated that the evidence would show that Roth was ejected from the car because she wasn't wearing her seatbelt, and had she been wearing her seatbelt, she wouldn't have been ejected and she wouldn't have received her spinal injuries. Roth's attorney did not object.

In closing arguments, BMW's attorney said, "[L]et's look at what [Roth is] claiming here and ask the question, did any of these alleged defects cause any injury to Ms. Roth or the accident? Take the seatbelt. It wasn't being worn . . ." Roth's attorney objected, and the Court clarified that BMW could "say that there is evidence she was not wearing her seat belt, so the seat belt couldn't have been defective, and, therefore, the defect in the seat belt could not be a cause of the injuries," but that BMW's attorney "can't say anything beyond that."

The jury returned a $5.9 million verdict in favor of Roth against the driver of the BMW for negligence, but returned a verdict in favor of BMW. The jury found no defect in the BMW.

Roth moved for a new trial against BMW based on NRCP 59(a)(2), which provides that misconduct may warrant a new trial if the misconduct "materially affect[s] the substantial rights of an aggrieved party." The district court granted the motion.

Violation of Motion in Limine

The Supreme Court addressed several issues in determining whether a new trial was warranted.

One issue was whether the prevailing party on a pretrial motion in limine must contemporaneously object to misconduct concerning a pretrial motion in limine. The Court concluded that whether a contemporaneous objection is required depends on whether the party prevailed on the motion in limine. Where the admission or exclusion of evidence at trial is pursuant to an order in limine, the alleged error at trial is the same as the error alleged in the ruling on the motion, and the party need not contemporaneously object in order to preserve claim of error on the ruling on the motion in limine. However, where the alleged error is attorney misconduct involving the violation of an order in limine, a contemporaneous objection must be made in order to preserve the claim of error on appeal. The Court explained the reasoning behind the distinction:

Dispensing with the requirement of a contemporaneous objection would allow the proponent of the order in limine to remain silent and hope for a new trial even though, in many instances, an objection and curative instruction would prevent the need to relitigate the case. Thus, contemporaneous objections to claimed violations of an order produced by a motion in limine are required to prevent litigants from wasting judicial, party, and citizen-juror resources.

BMW's attorney's references to seatbelt evidence in opening statements were not objected to; thus, claim of error was waived unless the misconduct was plain error. Noting that Roth did claim that the seatbelt system was defective, the lack of specificity in the court's order in limine, and the uncertainty in the law with respect to the seatbelt defense in crashworthiness cases, the Court ruled that the comments regarding seatbelt nonuse in opening statements were not plain error.

The Court then addressed the objected-to conduct in closing statements. Conduct that is admonished and objected to is subject to standards set forth in Lioce v. Cohen, 124 Nev. 1, 174 P.3d 970 (2008). Under Lioce, "a party moving for a new trial bears the burden of demonstrating that the misconduct is so extreme that the objection and admonishment could not remove the misconduct's effect." Lioce, 124 Nev. at 17, 174 P.3d at 981. The Court noted that "A violation of an order granting a motion in limine may only serve as a basis for a new trial when the order is specific in its prohibition and the violation is clear." Black v. Schultz, 530 F.3d 702, 706 (8th Cir. 2008).

The Court held that the closing argument statements did not warrant a new trial, because the jury instruction cured any misconduct, and in fact, the jury found no product defect and did not reach causation.

American Association for Justice President Gibson Vance authored an article in the Washington Post last month explaining the connection between decreased traffic deaths and the civil justice system. The full article is below.

How our cars got safer
By Gibson Vance
April 16, 2011

Traffic deaths in the United States have dropped to their lowest level since 1949, according to a report released this month by the National Highway Traffic Safety Administration (NHTSA). Remarkably, this drop occurred even as Americans drove 21 billion more miles in 2010 than they had the previous year.

The drop in fatalities is due in large part to the fact that cars are getting safer. Since the introduction of the Ford Pinto nearly four decades ago — a car synonymous with danger, destruction and executives putting profits ahead of consumer safety — amazing advancements have been made in auto safety. The technology is better, regulations are stronger and buyers have more information. Not surprisingly, consumers are drawn to cars with the latest safety features.

Yet these factors alone do not tell the whole story. History shows that litigation and the civil justice system have served as the most consistent and powerful forces in heightening safety standards, revealing previously concealed defects and regulatory weaknesses and deterring manufacturers from cutting corners on safety for the goal of greater profits.

The Ford Pinto litigation sent a strong message to the auto industry. Unfortunately, manufacturers have still sold dangerous cars. In June 2004, a Dallas-area mother stopped her Ford F-150 truck to speak with her husband through the driver’s side window. Her 3-year-old daughter leaned out the passenger’s side window and accidentally hit the rocker switch, causing the window to close on her neck. When her parents noticed moments later, it was too late — their daughter was strangled.

As power windows became more common, so too did instances of children being strangled. Seven children died within a three-month period in 2004. Manufacturers were aware of the issue, and the fix was relatively simple and inexpensive. In response to regulations in other countries, European and Asian cars already used a safer switch — one that must be pulled up to raise a window — and so did many U.S. manufacturers on cars they offered to foreign markets. Yet incredibly, U.S. manufacturers did not install the safer switches on domestic cars because NHTSA had no rules governing power-window safety. Litigation eventually forced universal acceptance of the safer switches in 2006.

It is easy to take for granted just how much safer vehicles have become and how safety measures have been standardized. For years, the auto industry has worked to undermine regulations and limit its liability by pushing for complete immunity from lawsuits when their vehicles comply with minimum federal safety standards. This would, in short, be devastating for consumers.

Recall that the Pinto’s design met all government standards of the time. Had compliance with federal standards been a complete defense of vehicle safety, Ford could not have been held accountable for the many burn victims that the company was later shown to have anticipated.

Put another way, without the civil justice system, gas tanks would still explode in rear-end collisions, seat belts and airbags would not be standard, and cars would roll over onto roofs that would be easily crushed.

There are multiple reasons behind the welcome news that traffic deaths continue to decline. But the role of the civil justice system is often overlooked. Litigation has spurred safety innovations in vehicles for more than half a century and will continue to be essential in keeping Americans safe and holding manufacturers accountable.

The writer is president of the American Association for Justice.