Filed: Oct. 07, 2020
Latest Update: Oct. 08, 2020
Summary: Case: 19-60364 Document: 00515593576 Page: 1 Date Filed: 10/07/2020 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED October 7, 2020 No. 19-60364 Lyle W. Cayce Clerk Meaghin Jordan, Individually and, on behalf of their minor son, Braylon Jordan; Jonathan Jordan, Individually and, on behalf of their minor son, Braylon Jordan, Plaintiffs—Appellants, versus Maxfield & Oberton Holdings, L.L.C., Defendant—Appellee. Appeal from the United States D
Summary: Case: 19-60364 Document: 00515593576 Page: 1 Date Filed: 10/07/2020 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED October 7, 2020 No. 19-60364 Lyle W. Cayce Clerk Meaghin Jordan, Individually and, on behalf of their minor son, Braylon Jordan; Jonathan Jordan, Individually and, on behalf of their minor son, Braylon Jordan, Plaintiffs—Appellants, versus Maxfield & Oberton Holdings, L.L.C., Defendant—Appellee. Appeal from the United States Di..
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Case: 19-60364 Document: 00515593576 Page: 1 Date Filed: 10/07/2020
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
October 7, 2020
No. 19-60364 Lyle W. Cayce
Clerk
Meaghin Jordan, Individually and, on behalf of their minor son,
Braylon Jordan; Jonathan Jordan, Individually and, on behalf of
their minor son, Braylon Jordan,
Plaintiffs—Appellants,
versus
Maxfield & Oberton Holdings, L.L.C.,
Defendant—Appellee.
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 3:15-CV-220
Before Stewart, Clement, and Costa, Circuit Judges.
Carl E. Stewart, Circuit Judge:
At twenty-two months old, Braylon Jordan suffered terrible injuries
after ingesting eight Buckyball magnets. Meaghin and Jonathan Jordan,
Braylon’s parents, sued Maxfield & Oberton Holdings, L.L.C. (“M&O”) for
manufacturing and distributing Buckyball magnets in the United States.
After an eight-day trial, the jury returned a verdict for M&O. The Jordans
moved for a new trial and for relief from judgment. The district court denied
both motions. We AFFIRM.
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No. 19-60364
I. Facts and Procedural History
In 2009, M&O manufactured and distributed Buckyball magnets,
small neodymium magnets 1 that can be manipulated into various shapes.
Prior to 2010, Buckyball magnets were labeled as appropriate for children
ages 13 and up. In 2010, the Consumer Product Safety Commission
(“CPSC”) recalled Buckyball magnets to clarify the magnets’ labels
pursuant to the Consumer Product Safety Improvement Act of 2008. The
Act adopted the American Society for Testing Materials (“ASTM”)
standard F963, which imposed strength limits on magnets designed,
manufactured, or marketed for children under age 14. Magnets for children
under age 14 were prohibited from exceeding 50 Gauss. 2 Prior to the CPSC’s
recall, Buckyball magnets did not comply with standard F963 because they
were marketed to children ages 13 and up and exceeded the 50 Gauss level.
After the recall, M&O worked with the CPSC to change Buckyball
magnet labels to indicate that the magnets were not intended for children of
any age. The new label appeared on Buckyball magnets in 2011 and warned
that they were to be kept away from all children and could cause serious injury
or death if swallowed or inhaled.
In March 2011, the Jordans purchased a set of Buckyball magnets
(featuring the new label) from Diamondhead Pharmacy and Gift Shop in
Diamondhead, Mississippi. On April 2, 2012, Braylon became very sick and
vomited throughout the night. His parents took him to an urgent-care facility,
and he was later transferred to a hospital. An x-ray revealed that Braylon had
swallowed eight Buckyball magnets, causing major damage to his stomach
1
Neodymium magnets are magnets composed of the rare-earth metal neodymium,
and they are the strongest type of permanent magnets that are commercially available.
2
A “Gauss” is the unit of measurement of magnetic induction.
2
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and intestines. Jonathan Jordan testified that they ordinarily stored the
Buckyball magnets outside of Braylon’s reach, but Braylon may have found
some loose magnets underneath the couch.
On March 24, 2015, the Jordans filed suit against M&O. The Jordans
asserted several claims against M&O under Mississippi state law, including
product liability claims for failure to warn and defective design. They also
asserted fraudulent transfer, civil conspiracy, and federal and state Racketeer
Influenced and Corrupt Organizations Act (“RICO”) claims against M&O
and its insurers. The district court bifurcated the claims and held a separate
trial on those for product liability.
Despite pleading both failure to warn and defective design claims, the
Jordans only argued the defective design claim at trial. Under the Mississippi
Product Liability Act (“MPLA”), a claimant must demonstrate that the
product was defective “at the time the product left the control of the
manufacturer, designer or seller.” MISS. CODE ANN. § 11-1-63(a) (2014).
Claimants must also show that “[t]he manufacturer or seller knew, or in light
of reasonably available knowledge or in the exercise of reasonable care should
have known, about the danger that caused the damage for which recovery is
sought.” Id. at § 11-1-63(f)(i). “The [MPLA] speaks only of dangers known
as of the time the product leaves the control of the manufacturer or seller.”
Noah v. Gen. Motors Corp.,
882 So. 2d 235, 239 (Miss. Ct. App. 2004).
Before trial, M&O submitted a motion in limine to exclude evidence
that post-dated the Jordans’ Buckyball purchase (“post-sale evidence”).
M&O argued that post-sale evidence was irrelevant because it did not reflect
what M&O knew when the Jordans purchased the Buckyball magnets. M&O
sought to exclude all mention of the CPSC’s subsequent regulation of rare-
earth magnets and its administrative actions against M&O. In July 2012
(more than a year after the Jordans’ Buckyball purchase), the CPSC
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designated Buckyballs and all other rare-earth magnets as “substantial
product hazards.” The CPSC sued M&O in an administrative enforcement
action and recalled all Buckyball magnets later that year. In 2014, the CPSC
adopted a mandatory safety standard for magnets that effectively banned the
sale of Buckyballs and other rare-earth magnets. M&O hoped to exclude
evidence of these proceedings and related proceedings between the CPSC
and Zen Magnets, M&O’s chief competitor.
The Jordans opposed M&O’s motion in limine and sought to
introduce various pieces of post-sale evidence. They sought to introduce July
2012 correspondence between the CPSC and Alan Schoem, M&O’s
attorney, where the CPSC discussed the risk of swallowing Buckyball
magnets and its investigation into M&O. They also sought to introduce the
CPSC’s July 2012 Administrative Complaint against M&O, the CPSC
Hazardous Magnet Rule Briefing Package (a proposal related to the
mandatory safety standard the CPSC adopted in 2014), and the CPSC’s
Amended Responses to Requests for Admissions in its administrative action
against M&O.
The district court granted the motion in limine in part and excluded
most post-sale evidence. The district court allowed the Jordans to introduce
a post-sale study that one of their medical experts relied on, but the court
otherwise instructed the parties to “stick to the MPLA and avoid any risk of
retrying this case at great expense and inconvenience.” Jordan v. Maxfield &
Oberton Holdings L.L.C., No. 3:15-CV-220 (S.D. Miss. June 18, 2018) (order
granting motion in limine in part and denying in part). Notwithstanding the
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motion in limine, the Jordans did use some post-sale evidence to cross-
examine witnesses. 3
Through the beginning of trial, the Jordans argued that Buckyball
magnets were children’s toys and were defectively designed under the
MPLA. On the fifth day of trial, the Jordans asked the district court to give
the jury a preemption instruction, arguing that the 2008 Consumer Product
Safety Improvement Act incorporated ASTM F963 and partially preempted
state law. Counsel for the Jordans argued that ASTM F963 (requiring that
magnets not exceed 50 Gauss) could be used to determine the magnet defect
and that the jury could render a verdict for the Jordans if it concluded that
Buckyball magnets exceeded 50 Gauss. The district court denied the
Jordans’ request for the preemption jury instruction.
After an eight-day trial, the jury returned a verdict in favor of M&O.
The Jordans moved for a new trial under FED. R. CIV. P. 59(a) on all issues.
The Jordans also moved for relief from the final judgment under FED. R.
CIV. P. 60(b)(3). The district court denied both motions, and the Jordans
appealed. The Jordans’ notice of appeal lists many rulings that they now
contest. We review their claims through the lens of the Rule 59 and Rule 60
motions.
II. Discussion
On appeal, the Jordans first argue under Rule 59 that the district
court’s exclusionary rulings prevented them from presenting their case and
3
During the cross-examination of Alan Schoem, the Jordans used a September
2011 (and therefore post-sale) email from the CPSC about M&O’s corrective action plan.
The email was not admitted into evidence, but the Jordans showed it to Schoem and
questioned him about it. They also cross-examined Nancy Nord with the August 2012
CPSC briefing package on hazardous magnet materials and the CPSC’s Amended
Responses to Requests for Admissions.
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cross-examining M&O’s witnesses. Next, the Jordans argue under rule 60
that the exclusion of post-sale evidence allowed M&O to misrepresent the
facts at trial. Lastly, they argue under Rule 59 that the district court’s denial
of their request for a preemption instruction warrants a new trial. We agree
with the district court’s denial of relief on all issues.
a. Rule 59 motion
The Jordans argue for a new trial based on the district court’s grant of
the motion in limine and bench rulings that excluded post-sale evidence.
They argue that the district court’s rulings prevented them from fully
presenting their case. We disagree.
The district court denied the Jordans’ motion for a new trial under
Rule 59, and we review the denial of that motion for abuse of discretion.
Benson v. Tyson Foods, Inc., 889 F.3d 233, 234 (5th Cir. 2018).
After a jury trial, a court may grant a motion for a new trial “for any
reason for which a new trial has heretofore been granted in an action at law
in federal court.” FED. R. CIV. P. 59(a)(1)(A). A court may grant a new
trial when there is an erroneous evidentiary ruling at trial. See Willitt v. Purvis,
276 F.2d 129, 132 (5th Cir. 1960) (affirming the district court’s grant of a new
trial when evidence was erroneously adduced at trial). “Courts do not grant
new trials unless it is reasonably clear that prejudicial error has crept into the
record or that substantial justice has not been done, and the burden of
showing harmful error rests on the party seeking the new trial.” Sibley v.
Lemaire,
184 F.3d 481, 487 (5th Cir. 1999) (quoting Del Rio Distrib., Inc. v.
Adolph Coors Co.,
589 F.2d 176, 179 n.3 (5th Cir. 1979)).
The Jordans allege that the exclusionary rulings constituted
prejudicial error because the rulings prevented the Jordans from fully
presenting their case and cross-examining M&O’s witnesses. A central issue
at trial was whether Buckyball magnets were children’s toys or adult
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products, and the Jordans argue that they were unable to fully present their
case on this issue. M&O’s witnesses testified that the CPSC determined that
Buckyball magnets were adult products. M&O designated Nancy Nord, a
former CPSC commissioner, as an expert witness in the areas of the
Consumer Product Safety Act, the CPSC, and the CPSC’s procedures. Nord
testified that the CPSC did not believe that Buckyball magnets were
children’s toys in 2010 because the CSPC did not regulate them under the
more-stringent children’s toy standard. According to Nord, if the CPSC did
consider Buckyball magnets children’s toys when it issued its 2010 recall,
Buckyballs would have been subjected to heightened safety, tracking, and
warning requirements. She testified that the less onerous labeling change
required by the CPSC in 2010 reflected the CPSC’s position that Buckyball
magnets were adult products rather than children’s toys.
The Jordans argue that they should have been able to counter Nord’s
testimony by introducing post-sale evidence of the CPSC’s 2012 regulatory
and administrative actions against M&O. Their evidence showed that in
2012, the CPSC began regulating Buckyball magnets as children’s toys (and
therefore subjecting the product to the heightened safety, tracking, and
warning requirements.) The Jordans’ brief states that they withdrew the July
2012 correspondence between the CPSC and M&O’s attorney after the court
granted M&O’s motion in limine and that this prevented them from fully
presenting their case.
Though the Jordans argue that the district court’s ruling deprived
them of vital evidence, the MPLA requires claimants to prove defect based
on what the manufacturer knew at the time the product was sold. MISS. CODE
ANN. § 11-1-63(a) (emphasis added); see Noah, 882 So. 2d at 239 (discussing
a manufacturer’s duties owed at the time of sale). The MPLA makes it clear
that M&O’s conduct should only be evaluated through March 2011 for the
purposes of the Jordans’ lawsuit. Evidence of the CPSC’s 2012 regulation of
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M&O may have cast M&O in a different light at trial, but this fact does not
compel the admission of evidence that was properly excluded. Thus, the
Jordans have not demonstrated that the district court’s exclusion of post-sale
evidence was prejudicial error.
While it is true that the pretrial motion in limine limited the Jordans’
ability to launch directly into post-sale evidence at trial, it is not true that the
motion wholly prevented the Jordans from later admitting post-sale evidence.
Even though the motion in limine initially excluded post-sale evidence,
nothing prohibited the Jordans from seeking to revisit that ruling later.
Though the record indicates that the Jordans contemplated asking the
district court to reconsider its ruling on the motion in limine, they never did. 4
The Jordans rely on Muzyka v. Remington Arms Co., Inc. for the
proposition that denying a party’s request to use subsequent remedial
measures as impeachment evidence affects a party’s substantial rights and
warrants reversal. 774 F.2d 1309, 1313 (5th Cir. 1985). Muzyka does not
support the Jordans’ argument.
In Muzyka, Muzyka sued Remington after a rifle discharged a bullet
due to a malfunction with the rifle’s bolt-lock safety. Id. at 1310. The district
court granted Remington’s motion in limine to exclude evidence of a
subsequent redesign of the rifle pursuant to FED. R. EVID. 407.
Id. When
Remington’s witness testified that the earlier design was “maybe the best
production rifle ever designed in the world,” Muzyka asked the court to
reconsider the motion in limine.
Id. at 1310–12. The district court denied
Muzyka’s request. We reversed and held that the evidence that Remington
changed the design shortly after Muzyka’s accident should have been
4
At trial, the Jordans’ counsel stated that “we may ask the court . . . to revisit the
court’s ruling regarding the exclusion of the other CPSC matters.”
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admitted for impeachment purposes. Id. at 1313. We further held that the
district court’s error in excluding the evidence was not harmless.
Id. at 1313–
14.
The Jordans’ reliance on Muzyka is misplaced. The Jordans indicated
that they might ask the district court to reconsider its ruling on the motion in
limine, but they stopped short of actually asking the court to reconsider.
Muzyka is therefore distinguishable.
Even assuming arguendo that the Jordans were justified in not
attempting to revisit the court’s ruling on the motion in limine, Muzyka still
does not control the outcome of this case. The evidence erroneously
excluded in Muzyka was directly relevant to the quality of the weapon that
injured the plaintiff and whether the weapon’s design was improper. 774 F.2d
at 1310–1313. Here, the evidence that the Jordans sought to introduce is made
immaterial by the terms of the MPLA. See § 11-1-63(a) (discussion of a
manufacturer’s duties at the time of sale). Evidence of post-sale information
may therefore be properly excluded due to its potential prejudicial effect. See
Noah, 882 So. 2d at 239 (“Under the circumstances, admission of the prior
incident reports occurring after the date of sale would likewise have been
more prejudicial than probative.”).
In sum, the district court did not commit prejudicial error by granting
the motion in limine and otherwise excluding post-sale evidence at trial. We
thus hold that the district court did not abuse its discretion in determining
that the Jordans failed to demonstrate that its evidentiary rulings constituted
prejudicial error.
b. Rule 60 motion
The Jordans next argue that the district court erred in denying their
motion to set aside the final judgment because the judgment was obtained
through M&O’s misrepresentations. See FED. R. CIV. P. 60(b)(3). They
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argue that the district court’s exclusion of most post-sale evidence allowed
M&O to misrepresent the facts at trial and rendered them unable to rebut
M&O’s case. Again, we disagree.
We review the district court’s denial of a motion for relief from
judgment under Rule 60(b) for abuse of discretion. In re Deepwater Horizon,
934 F.3d 434, 446 (5th Cir. 2019) . To obtain relief under Rule 60(b)(3), the
moving party must demonstrate that the misrepresentation prevented the
movant from fully and fairly presenting his case. In re DuPuy Orthopaedics,
Inc., Pinnacle Hip Implant Prod. Liab. Litig.,
888 F.3d 753, 790 (5th Cir. 2018).
Movants are not required to prove that the misrepresentation was outcome
determinative.
Id. Reversal is warranted when movants show that their
opponent’s misrepresentation “foreclosed potentially promising cross-
examination tactics.”
Id.
The Jordans allege that the evidentiary rulings allowed M&O to create
misleading narratives that the CPSC considered Buckyball magnets adult
products
(discussed supra) and that expert witness Nord was an unbiased
expert on the CPSC. Nord testified that the CPSC determined Buckyball
magnets were not children’s toys and that the CPSC Staff agreed to M&O’s
corrective action plan. The Jordans were aware of several articles 5 that Nord
had authored favoring M&O in its ongoing dispute with the CPSC, but all the
articles post-dated the Jordans’ Buckyball purchase (and may have been
excluded by M&O’s motion in limine). During voir dire, the Jordans asked
Nord about her relationship with M&O. Nord did not answer the question.
She stated that she could probably answer the question but was “a little
5
Nord authored several articles that criticized the CPSC for its regulation of
Buckyball products. Among her writings was a Wall Street Journal piece titled “The
Irrational Federal War on Buckyballs” and another piece on her personal blog titled “The
Saga of Buckyballs—How Not to Regulate.”
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concerned that it [the answer to the question] might be subsequent to 2011.”
The Jordans did not ask the district court to instruct Nord to answer the
question, and they did not ask her further questions on this point.
The Jordans cite to several articles, blog posts, and speaking
engagements that reflect Nord’s involvement with M&O. Though the
Jordans had access to much of this information at trial, the Jordans conceded
at oral argument that they did not proffer this evidence to the court as bias
evidence. In their motion for a new trial, the Jordans provided the district
court with full evidence of Nord’s alleged bias for the first time.
Federal Rule of Evidence 103(a)(2) requires parties to proffer
excluded evidence to the court unless the “substance was apparent from the
context.” The Jordans do not argue that the substance of their bias evidence
against Nord was apparent from the context, so they were required to proffer
this evidence to preserve the alleged error on appeal. See FED. R. EVID.
103(a)(2). The Jordans failed to proffer evidence of Nord’s alleged bias, so
the district court was unable to rule on the evidence’s admissibility.
Therefore, we cannot review the exclusion of this evidence. See United States
v. Vitale, 596 F.2d 688, 689–90 (5th Cir. 1979) (“Under the law of this circuit,
the propriety of a decision to exclude evidence will not be reviewed if an offer
of proof was not made at trial.”).
The Jordans further rely on In re DePuy Orthopaedics in support of this
argument, but that case is inapposite. In that case, we reversed the district
court’s denial of the defendants’ Rule 60(b)(3) motion because the plaintiffs’
counsel concealed payments to their expert witnesses. 888 F.3d at 788 (5th
Cir. 2018). At trial, the plaintiffs used two experts and repeatedly argued that
the experts were unbiased because they were not being compensated (unlike
the defendants’ compensated experts).
Id. at 788–89.
In fact, both plaintiffs’
experts were compensated for testifying, and plaintiffs failed to disclose this
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information at trial. Id. at 789, 791. We held that the plaintiffs’
misrepresentations deprived the defendants of the opportunity to fully
examine the plaintiffs’ witnesses as paid experts.
Id. at 792. We reversed
because the defendants demonstrated by clear and convincing evidence that
the plaintiffs’ misrepresentations prevented them from fully and fairly
presenting their case.
Id. at 790.
Here, M&O did not conceal information about Nord from the court
or the Jordans at trial. On the contrary, the bias evidence relied on by the
Jordans was publicly available. The Jordans had this information at trial but
failed to proffer this evidence. Because the Jordans failed to proffer this
evidence, the district court was unable to rule on the evidence’s admissibility
in the first instance. Thus, the district court did not err.
c. Preemption Jury Instruction
The Jordans requested a new trial on the additional ground that the
district court improperly denied their request for a jury instruction. They
sought an instruction that the federal magnet standard (ASTM F963,
requiring magnets for children to be no stronger than 50 Gauss) preempted
state law on the defect element of their claim. At the pretrial conference, the
Jordans did not present preemption arguments or indicate that they were
pursuing a preemption claim. On the fifth day of trial, the Jordans requested
a preemption jury instruction and argued that the federal magnet standard
provided a rule of decision in the case. 6 They sought an instruction that the
6
Preemption is an odd label for plaintiff’s proposed instruction because federal
preemption of a state law tort claim would mean a plaintiff cannot assert the state claim.
See, e.g., Kurns v. Railroad Friction Prods. Corp., 565 U.S. 625 (2012) (holding that
Locomotive Inspection Act prevented plaintiff from pursuing a state-law design defect
claim). That is why it is typically defendants who assert preemption. See
id. The Jordans
seem to be arguing not that their design defect claim is displaced by federal law (that is,
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jury could find that Buckyball magnets were defective under the MPLA using
the federal magnet standard.
Though the Jordans arguably never requested to amend the pretrial
order to include their preemption claim, we will treat their request for a jury
instruction as a request to amend the pretrial order arguendo. We review a
district court’s decision denying a motion to amend a pretrial order for abuse
of discretion. See Quick Techs., Inc. v. Sage Grp. PLC, 313 F.3d 338, 345 (5th
Cir. 2002). “Because of the importance of the pretrial order in achieving
efficacy and expeditiousness upon trial in the district court, appellate courts
are hesitant to interfere with the court’s discretion in creating, enforcing, and
modifying such orders.”
Id. (quoting Flannery v. Carroll,
676 F.2d 126, 129
(5th Cir. 1982)).
Federal Rule of Civil Procedure 16 states that a court may only modify
a pretrial order issued after a final pretrial conference “to prevent manifest
injustice.” FED. R. CIV. P. 16(e). “[A]n amendment of a pretrial order
should be permitted where no substantial injury will be occasioned to the
opposing party, the refusal to allow the amendment might result in injustice
to the movant, and the inconvenience to the court is slight.” DP Sols., Inc. v.
Rollins, Inc., 353 F.3d 421, 436 (5th Cir. 2003) (quoting Sherman v. United
States,
462 F.2d 577, 579 (5th Cir. 1972)).
It would not be reasonable to conclude that there would have been no
injury to M&O if the court permitted the Jordans to amend the pretrial order
during trial. M&O’s trial strategy centered on rebutting the Jordans’ MPLA
claim, and M&O did not conduct discovery on the preemption issue. The
preemption), but that a violation of the federal magnet standard would help them establish
a design defect to support their state claim.
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prejudice to M&O may have been great if the Jordans were able to surprise
them with the preemption claim at trial.
We also do not agree with the Jordans that they suffered injustice (let
alone, manifest injustice) when the district court declined to amend the
pretrial order. Manifest injustice generally does not result where a party
requests to amend based on evidence that the party knew about at the time of
the pretrial conference. See Trinity Carton Co., Inc. v. Falstaff Brewing Corp.,
767 F.2d 184, 192 n.13 (5th Cir. 1985) (“Even though amendment of the
pretrial order may be allowed where no surprise or prejudice to the opposing
party results, where, as here, the evidence and the issue were known at the
time of the original pretrial conference, amendments may generally be
properly refused.”). The Jordans knew or should have known about the
federal magnet standard and the preemption argument at the time of the
pretrial conference. Because they did not mention the claim at the pretrial
conference, there was no injustice when the district court denied their
belated request for a jury instruction.
Lastly, it is not true that amending the pretrial order during trial
would have come at little inconvenience to the court. Amending the pretrial
order at that stage would have been grounds for a continuance or even a
mistrial and could have caused both the district court and the parties great
inconvenience. Therefore, the district court did not err in denying the
Jordans’ request for a preemption jury instruction.
III. Conclusion
For the foregoing reasons, the district court’s denial of the Jordans’
motion for a new trial and motion for relief from judgment is AFFIRMED.
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