Nicole Thompson v. Trw Automotive U.s. Llc, a Delaware corporation

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
NICOLE THOMPSON,
Plaintiff-Appellee,
v.
TRW AUTOMOTIVE U.S. LLC, a
Delaware corporation,
Defendant-Appellant.
No. 15-17074
D.C. No.
2:09-cv-01375-JAD-PAL
MEMORANDUM*
Appeal from the United States District Court
for the District of Nevada
Jennifer A. Dorsey, District Judge, Presiding
Argued and Submitted July 14, 2017
San Francisco, California
Before: GRABER and FRIEDLAND, Circuit Judges, and FOGEL,** District
Judge.
TRW Automotive U.S. LLC (“TRW”) appeals from the denial of its motions
for judgment as a matter of law and for a new trial after a jury found in favor of
Nicole Thompson in her product liability action against TRW. TRW argues that
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable Jeremy D. Fogel, United States District Judge for the
Northern District of California, sitting by designation.
FILED
JUL 25 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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(1) the district court should have used a risk-utility instruction; (2) the court should
have used a but-for causation instruction; and (3) substantial evidence does not
support a conclusion that the airbag’s failure to deploy caused Thompson’s
injuries.
1. The district court did not err by failing to use a risk-utility instruction
because Nevada has not adopted the risk-utility test in design defect product
liability cases. Instead, Nevada courts use the consumer-expectations-based test
articulated in Ginnis v. Mapes Hotel Corp., 470 P.2d 135 (Nev. 1970). The district
court used this test to instruct the jury, and its instruction mirrored Nevada’s
pattern jury instruction.
2. Thompson and TRW presented mutually exclusive theories of causation
for Thompson’s injuries: Either Thompson’s head hitting the visor upon contact
with the pole caused her neck injury—and the airbag could have prevented this
injury had it deployed—or her chin hitting the steering wheel upon contact with the
curb caused the injury, and any later deployment of the airbag would not have
prevented the injury. Because the theories were mutually exclusive, the district
court should have given a but-for causation instruction. See Wyeth v. Rowatt, 244
P.3d 765, 778 (Nev. 2010). Nevertheless, because the parties presented the
theories to the jury as mutually exclusive and evidence supports Thompson’s
theory, it is more probable than not that the jury would have returned a verdict for

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Thompson even if the court had used the but-for causation instruction. The error
was thus harmless.
3. Substantial evidence supports the conclusion that a design defect in the
airbag electronic control module caused Thompson’s injuries. At trial, witnesses
explained how airbags operate, what they are intended to do, and why they would
be expected to deploy in the collision at issue. Witnesses also described how the
collision with the pole caused Thompson’s injuries. Given the testimony regarding
the purpose and operation of airbags and the evidence that the pole collision caused
Thompson’s injuries, substantial evidence demonstrates that, had the airbag
deployed during the collision, Thompson would not have suffered worse injuries
and in fact would have sustained less severe injuries. Moreover, substantial
evidence shows that Thompson’s failure to wear her seatbelt or a defect in the
seatbelt was not a superseding intervening cause of her injuries.
AFFIRMED.

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