Donna Rutledge appeals a grant of summary judgment for Harley-Davidson Motor Co. in this products liability action arising from a motorcycle accident. For the following reasons, we AFFIRM.
Donna Rutledge was injured when her motorcycle ran off the road on December 29, 2006. Rutledge purchased the motorcycle new on December 13, 2006, from the Chunky River Harley-Davidson dealership, in Meridian, Mississippi. The motorcycle was manufactured by Harley-Davidson Motor Co. (Harley-Davidson). On the morning of the accident, Rutledge drove the motorcycle the short distance from her home to the post office; during the ride she felt problems with the steering mechanism in the motorcycle. In the afternoon, she and a friend went for a longer ride. As the two riders approached a curve, Rutledge was unable to steer the motorcycle to the right, and, as a result, the motorcycle ran off the road and crashed. At the time of the accident, Rutledge was driving within the speed limit, and the road was dry, unobstructed, and in good condition. Rutledge sustained serious injuries.
Harley-Davidson sent out two recall notices affecting the model of Rutledge's motorcycle, first on January 22, 2007, and again on March 15, 2007. The recall informed motorcycle owners that the size and location of a voltage regulator could make contact with the front fender of the motorcycle in certain circumstances, potentially impacting the driver's ability to steer.
Rutledge sued Harley-Davidson for negligence, breach of implied warranty, and strict products liability under the Mississippi Products Liability Act, MISS. CODE ANN. § 11-1-63(a) (2004). Federal jurisdiction was based on diversity of citizenship, 28 U.S.C. § 1332. In arguing that the steering mechanism in her motorcycle was defective, she relied on the recall notices from Harley-Davidson and declined to produce her own expert to provide evidence on the existence of a defect. Harley-Davidson moved for summary judgment, arguing that Rutledge failed to prove that a specific defect existed in her motorcycle, as required by Mississippi law. Harley-Davidson submitted an affidavit from an engineering expert, who examined the photographs of the motorcycle after the accident, the recall notices, and Rutledge's insurer's repair estimate for the motorcycle.
The district court granted summary judgment for Harley-Davidson, finding that the recall notices—evidence of subsequent remedial measures—were inadmissible under Federal Rule of Evidence 407 (Rule 407). Absent the recall notices, the district court found that Rutledge failed to raise a genuine issue of fact as to the existence of a design or manufacturing defect. Rutledge timely appealed.
II. STANDARD OF REVIEW
We review a district court's grant of summary judgment de novo. LeMaire v. La. Dep't of Transp. & Dev., 480 F.3d 383, 386 (5th Cir. 2007). Summary judgment is appropriate when "the discovery and disclosure materials on file and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(c); Breaux v. Halliburton Energy Servs., 562 F.3d 358, 364 (5th Cir. 2009). "A genuine issue of material fact exists if a reasonable jury could enter a verdict for the non-moving party." Brumfield v. Hollins, 551 F.3d 322, 326 (5th Cir. 2008). We must take all the facts and evidence in the light most favorable to Rutledge, the non-moving party. Breaux, 562 F.3d at 364.
We have jurisdiction under 28 U.S.C. § 1291. As this is a diversity case, we apply the substantive law of Mississippi under the Erie doctrine. Rutledge raises two main issues on appeal.
A. Recall Notices
Rutledge argues that the district court erred by characterizing the recall notices as subsequent remedial measures under Rule 407, which states:
FED. R. EVID. 407. This is an evidentiary question; as such, we review for abuse of discretion. See United States v. Smith, 481 F.3d 259, 264 (5th Cir. 2007); Underwriters at Lloyd's London v. OSCA, Inc., Nos. 03-20398, 03-20817, 03-21021, 2006 WL 941794, at *4-5 (5th Cir. Apr. 12, 2006) (reviewing Rule 407 decision for abuse of discretion).
Before the district court, Rutledge argued that "Harley-Davidson admits [through the recall notices] that these motorcycles were `built with voltage regulator part number 74546-07 which, as a result of a greater body thickness than used in previous model years, may contact the front fender under certain circumstances.'" Because of this statement, the district court concluded that Rutledge was offering the recall notices only as evidence of the existence of a defect. Rutledge asserts that she offered the recall notices "to prove that there was a pre-existing condition that caused her motorcycle to be potentially dangerous" and to show Harley-Davidson's ownership or control of the design, the existence of a duty to motorcycle owners, and the feasibility of an alternative design.
The recall notices were issued in January and March 2007, after Rutledge's accident in December 2006.
Rutledge acknowledges that she offered the notices to show "a pre-existing condition that caused her motorcycle to be potentially dangerous." This purpose falls squarely within Rule 407's bar on evidence of subsequent remedial measures offered "to prove . . . a defect in a product[or] a defect in a product's design." While Rutledge argues on appeal that she has other purposes for introducing the notices,
B. Summary Judgment
In her complaint, Rutledge raised claims for negligence, breach of implied warranty, and strict products liability, and the district court granted summary judgment on all three claims. In her brief to this court, she generally refers to the warranty and negligence claims, but she does not point to specific facts in the record to support the elements of those two claims, nor does she make any arguments specifically tailored to those claims. Therefore, she has waived her arguments on appeal as regards the negligence and warranty claims. See Goodman v. Harris County, 571 F.3d 388, 399 (5th Cir. 2009) (issues inadequately briefed on appeal are waived).
To survive summary judgment on a Mississippi strict products liability suit, a plaintiff must raise a genuine issue of material fact as to whether
MISS. CODE ANN. § 11-1-63(a). Rutledge's complaint alleges violations of subsections (i)(1) and (i)(3)—manufacturing defect and design defect. The district court found that, without the recall notices, Rutledge failed to raise a genuine issue of material fact as to whether the motorcycle was defective—a prerequisite to recovery. Rutledge argues that she did, in fact, raise a fact issue sufficient to survive summary judgment because she introduced her own deposition testimony that: she was an experienced motorcycle driver; she did not make any modifications to the motorcycle between its purchase and the accident; on the day of the accident the weather was clear, the road was unobstructed, and she was driving within the speed limit; and the motorcycle failed to steer when she attempted to turn it to the right. According to Rutledge, these facts were enough to raise a genuine fact issue. In particular, she argues that this was sufficient to contradict the affidavit of Harley-Davidson's expert, which concluded that the condition described in the recall notices did not cause the accident.
Under Mississippi law, "the existence of a product defect must be established before recovery may be obtained for a resulting injury" in strict products liability. Gray v. Manitowoc Co., Inc., 771 F.2d 866, 869 (5th Cir. 1985); see also Moss v. Batesville Casket Co., Inc., 935 So.2d 393, 405-06 (Miss. 2006) ("Regardless of which subsection of MISS. CODE ANN. § 11-1-63(a)(i) a plaintiff sues under, the plaintiff must prove [that] the defective condition rendered the product unreasonably dangerous to the user or consumer . . . ."). Merely offering evidence that dam age occurred after the use of a product is insufficient to establish liability. See William Cooper & Nephews, Inc. v. Pevey, 317 So.2d 406, 409 (Miss. 1975) ("Mere proof of damage following [the] use [of the allegedly defective product] was not sufficient to establish liability . . . ."); 57B AM. JUR. 2D Negligence § 1187 (2009) ("The doctrine of res ipsa loquitur is inapplicable in any action predicated upon the theory of strict liability.").
As the moving party, Harley-Davidson bore the initial burden of "informing the district court of the basis for its motion, and identifying the portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quotation marks omitted). By submitting the expert affidavit with its conclusion that "[b]ased on the absence of any evidence of contact between the top of the voltage regulator and the rear of the front fender on Ms. Rutledge's motorcycle, the condition described in [the recall notices] did not cause Ms. Rutledge's accident," Harley-Davidson satisfactorily met its preliminary burden of establishing the absence of a fact issue.
At this point, the burden shifted to Rutledge to "go beyond the pleadings and designate specific facts showing that there is a genuine issue for trial." Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc). Rutledge failed to do so; she offered no evidence independent of the inadmissible recall notices to show that a specific defect existed in her motorcycle. As such, the district court did not err in granting summary judgment for Harley-Davidson.
One motion remains outstanding on this appeal. Harley-Davidson moved to strike portions of Rutledge's brief as discussing matters outside the record. This motion is DENIED.
For the foregoing reasons, we AFFIRM the district court's grant of summary judgment for Harley-Davidson and DENY the motion to strike.