Parr, J. v. Ford Motor Company ( 2014 )

J-E02007-14
2014 Pa. Super. 281
JOSEPH AND APRIL PARR, HUSBAND IN THE SUPERIOR COURT OF
AND WIFE, INDIVIDUALLY AND AS PENNSYLVANIA
PARENTS AND NATURAL GUARDIANS OF
SAMANTHA PARR,
Appellants
v.
FORD MOTOR COMPANY, MCCAFFERTY
FORD SALES, INC. D/B/A MCCAFFERTY
AUTO GROUP, MCCAFFERTY FORD OF
MECHANICSBURG, INC., AND
MCCAFFERTY FORD COMPANY,
Appellees No. 2793 EDA 2012
Appeal from the Judgment Entered on August 31, 2012
In the Court of Common Pleas of Philadelphia County,
Civil Division, at No. 002893, December Term, 2009.
BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., BOWES, J., SHOGAN, J.,
ALLEN, J., OTT, J., WECHT, J., STABILE, J., and JENKINS, J.
CONCURRING OPINION BY WECHT, J.: FILED DECEMBER 22, 2014
It is a venerable, if somewhat time-worn, aphorism that hard cases
make bad law. Thus, when confronted with a “hard” case that might be
resolved on narrow grounds, it is prudent to rule no more broadly than
necessary. It is out of this concern that I depart to varying degrees from
the learned majority’s reasoning on three of the four issues before us,
although, for the reasons set forth below, I join the majority’s affirmance of
the judgment entered by the trial court.
J-E02007-14
To begin, I join the majority’s rejection of Joseph and April Parr’s
claim, presented on appeal as their first issue, that the trial court erred or
abused its discretion in admitting evidence submitted by Ford Motor
Company (“Ford”) in support of its “diving/torso augmentation” theory of
causation. Notwithstanding the Parrs’ strenuous argument to the contrary,1
there is an ongoing debate among experts regarding whether and to what
extent “diving,” “torso augmentation,” and “roof crush” may be responsible
in a given rollover accident for severe injuries and death. Where qualified
experts venture competing theories, each to a reasonable degree of scientific
certainty based upon information and analyses regularly relied upon by their
scientific communities, the jury, not the court, must resolve the
disagreement. See generally Rose v. Hoover, 331 A.2d 878, 880 (Pa.
Super. 1974) (“Once the court is satisfied that a basis in fact exists for the
expert opinion, it is for the jury to determine the weight of the evidence.”).
In their second issue, the Parrs contend that the trial court abused its
discretion in granting Ford’s motion in limine to exclude studies and data
associated with rule-making by the National Highway and Transportation
____________________________________________
1
See Brief for the Parrs at 26 (“Although [the National Highway and
Transportation Safety Administration’s] ‘roof crush’ theory versus the
[automobile] industry’s ‘diving/torso augmentation’ theory was a heavily
contested issue for years prior to 2001, the year of the [Ford] Excursion’s
manufacture, in 2009, NHTSA determined once and for all that ‘roof crush’
and not ‘diving/torso augmentation’ was a potential cause of head and neck
injuries—such as those sustained by Mrs. Parr—among belted occupants in
rollover accidents.” (emphasis omitted)).
-2-
J-E02007-14
Safety Administration (“NHTSA”) concerning vehicle roof strength standards
that post-dated the date of manufacture of the 2001 Ford Excursion at issue
in this case. The trial court, noting that post-manufacture standards have
no bearing on the determination whether a given product is defective for
purposes of a products liability claim, deemed the post-2001 proceedings
leading up to the 2009 amendment to the Federal Motor Vehicle Safety
Standard2 irrelevant and excludable as such. See Trial Court Opinion
(“T.C.O.”), 3/1/2013, at 4-5; Duchess v. Langston Corp., 769 A.2d 1131,
1142 (Pa. 2001) (“[P]roducts are to be evaluated at the time of distribution
when examining a claim of product defect.”).
Before this Court, however, the Parrs do not contend that they sought
the admission of this evidence for purposes of establishing a product defect.
Rather, they contend that they sought to introduce the post-2001 rule-
making proceedings to establish that roof crush, rather than diving/torso
augmentation, caused Mrs. Parr’s catastrophic injuries in this case, as well
as to impeach Ford’s witnesses who maintained otherwise. Brief for the
Parrs at 34-36. They further assert that this evidence was admissible to
establish the foundation for their causation experts’ opinions. Id. at 36-37.
____________________________________________
2
See Federal Motor Vehicle Safety Standards; Roof Crush Resistance;
Phase-In Reporting Requirements, 74 Fed. Reg. 22348 (May 12, 2009).
-3-
J-E02007-14
The majority recites a litany of bases upon which to reject the Parrs’
arguments.3 First, the majority notes the limited utility of this evidence for
purposes of impeaching Ford’s experts’ attribution of Mrs. Parr’s injuries to
diving/torso augmentation, because Ford’s experts conceded that roof crush
may contribute to injury in certain cases. Maj. Op. at 23 (citing testimony).
Because the majority finds—and I agree—that the documents in question
reflected only NHTSA’s conclusion that “roof crush is one of several potential
causes of injury in rollover accidents,” id., albeit perhaps in stronger terms
than NHTSA previously had used,4 and that Ford’s experts admitted as
much, “the documents in question did not make the existence of any fact
that is of consequence to the determination of the action more or less
probable than it would be without the evidence.” Id. (citing Pa.R.E. 401
(“Test for Relevant Evidence”)).
The majority also seems to assert that the Parrs successfully put the
post-2001 rule-making before the jury in any event. Id. However, the
majority’s citations in support of that proposition do not sustain it. For
____________________________________________
3
The majority reaffirms the trial court’s rejection of this evidence for
the purpose of establishing the defectiveness of the Ford Excursion when it
left Ford’s possession. Maj. Op. at 22-23. Because the Parrs do not pursue
this issue on appeal, this commentary is dicta, albeit dicta based upon sound
and settled law.
4
See 74 Fed. Reg. at 22379 (“[NHTSA] believes that the statistically
significant relationship between roof intrusion and belted occupant injury . . .
indicates not just a suggestion, but a probability that increasing roof
strength reduces injury.”).
-4-
J-E02007-14
example, the majority cites a passage from the Parrs’ cross-examination of
defense expert Michael Leigh, but the only NHTSA-related question posed to
Leigh in the cited passage was as follows: “Do you not agree that all of the
studies of NHTSA, all of the studies of academia, all of the studies except the
ones where GM or Ford engaged the people [who] said that this is wrong, all
of the studies say that; do they not?” See Notes of Testimony (“N.T.”),
3/7/2012 (morning), at 63. Nothing about the context or wording of this
question suggests that the Parrs were confronting Leigh with post-2001 data
or studies. Similarly, the majority’s citation of the testimony of Catherine
Corrigan, Ph.D., on cross-examination concerned references to NHTSA
findings in a 1995 article, which could not have invoked post-2001 NHTSA
data or proceedings. See N.T., 3/19/2012 (afternoon), at 30-36.5,6 More
saliently, the majority observes that the excluded evidence ultimately was
cumulative to the frequent and repeated introduction in impeachment of pre-
2001 NHTSA findings that tended to support a causal connection between
roof crush and serious injury, albeit in less affirmative terms than NHTSA
____________________________________________
5
During the cited colloquy, the Parrs did refer to 2007 and 2008
studies, but those are distinct from the categorically excluded NHTSA rule-
making evidence. I discuss non-NHTSA studies published after 2001 in
connection with the Parrs’ third issue, infra.
6
The majority also cites in support of this claim comments in the Parrs’
closing argument. Argument is not evidence. Accordingly, such comments
are no substitute for evidence that is excluded improperly.
-5-
J-E02007-14
used in connection with its 2009 amendment to Rule 216. Maj. Op. at 23-24
(citing testimony).
Finally, the majority correctly notes that the erroneous exclusion of
admissible evidence requires relief only when the exclusion causes the
complaining party prejudice. Id. at 24 (citing Winschel v. Jain, 925 A.2d
782, 794 (Pa. Super. 2007)). The majority concludes that any error in this
instance was harmless because the evidence in question pertained to
causation, but the jury, having concluded that the 2001 Ford Excursion was
not defective, never reached the question of what caused Mrs. Parr’s
injuries. See id.
It is this last aspect of the majority’s ruling that troubles me most.
While the multifactorial framework for establishing a strict products liability
claim7 is an important tool in giving shape to the plaintiff’s burden of proof,
the line between defect and causation sometimes blurs. For example, if the
Parrs could establish that the overwhelming majority of rollover injuries and
fatalities in other Ford Excursions arise from roof crush rather than
diving/torso augmentation, and if the death or injury rate for Ford
Excursions in accidents similar to the accident at bar was substantially
higher than it is for other comparable vehicles, that might militate in favor of
____________________________________________
7
See Maj. Op. at 7 (“In order to prevail in . . . a product liability case,
the plaintiff must establish: (1) that the product was defective; (2) that the
defect existed when it left the hands of the defendant; and (3) that the
defect caused the harm.”).
-6-
J-E02007-14
a finding of product defect. Thus, the validity of such evidence sometimes
will affect the defect determination, even if it is presented nominally in
support of causation. I would not say that an erroneous exclusion of such
evidence, even if ventured primarily to establish causation, is harmless as a
matter of law simply because the jury, faced with the evidence actually
admitted at trial and ignorant of the evidence excluded, determined that the
Excursion was not defective.
That being said, the entwinement of these considerations in a case like
this raises countervailing concerns of particular application to this case.
Pennsylvania Rule of Evidence 403 provides that “[t]he court may exclude
relevant evidence if its probative value is outweighed by a danger of one or
more of the following: unfair prejudice, confusing the issues, misleading the
jury, . . . or needlessly presenting cumulative evidence.” This Court has
acknowledged that the probative value of prior accident evidence “is
tempered by judicial concern that the evidence may raise collateral issues,
confusing both the real issue and the jury.” Whitman v. Riddell,
471 A.2d 521, 523 (Pa. Super. 1984) (citing Stormer v. Alberts Constr.
Co., 165 A.2d 87, 89 (Pa. 1960)); cf. Mt. Olivet Tabernacle Church v.
Edwin L. Wiegand Div., 781 A.2d 1263, 1275 (Pa. Super. 2001)
(acknowledging the possibility that “an open-ended argumentative
exploration of possible similar incidents will confuse the jury and prejudice
the defendant”). Moreover, other jurisdictions’ case law and common sense
soundly suggest that the introduction of government findings and standards
-7-
J-E02007-14
may have an outsized prejudicial effect on a jury’s deliberations with respect
to the issues to which the evidence pertains. See Brief for Ford at 29 (citing
City of New York v. Pullman, 662 F.2d 910, 915 (2d Cir. 1981); Cover v.
Cohen, 61 N.Y.2d 261, 272 (N.Y. 1984)). Finally, because the governing
standards require a plaintiff to establish that the allegedly defective product
was defective at the time the manufacturer relinquished that product,
evidence of post-manufacture standards and laws is not relevant to the
question of design defect. See Duchess, 769 A.2d at 1142. Consequently,
the admission of NHTSA’s post-2001 rule-making might have confused and
unduly swayed the jury on the question of product defect, even if the trial
court directed the jury to weigh NHTSA’s conclusions only in considering
causation. Furthermore, the potential for prejudice would be considerable.
Conversely, while NHTSA’s 2009 rule was based upon a stronger
conclusion than it previously had reached regarding the correlation of roof
crush and serious injury, it was not novel to NHTSA. As evinced by the very
promulgation of roof strength standards nearly thirty years earlier, by 2001,
NHTSA effectively had maintained for decades that mitigation of roof crush
would reduce the risk of injury in rollover accidents. The Parrs undisputedly
were allowed to introduce evidence of NHTSA’s pre-2001 analyses and rule-
making on this topic, an opportunity of which they availed themselves
repeatedly. See Maj. Op. at 23-24 (citing various instances of the Parrs’
reliance in cross-examination on pre-2001 NHTSA commentary).
Furthermore, Ford’s experts conceded that roof crush could cause or
-8-
J-E02007-14
contribute to serious injuries in certain rollover accidents. Thus, while the
evidence in question would be highly prejudicial, its probative value in
support of causation would be quite limited.
While by and large I agree with the majority’s reasoning, I believe that
it is insufficiently sensitive to the complex balance of probative value and
prejudicial effect such evidence may present in certain cases, including in
this one. Thus, I believe that it is neither necessary nor advisable to opine
that this evidence’s exclusion was harmless as a matter of law. However,
because the thrust of nearly thirty years of NHTSA discussions of the likely
correlation between roof crush and injury was set before the jury and Ford’s
expert witnesses acknowledged that roof crush might cause injury in certain
circumstances, the jury was aware of the data and arguments supporting
the Parrs’ roof crush theory of causation. Measured against the risk of
prejudice highlighted above, and viewed in light of our considerable
deference to trial courts’ evidentiary rulings, see Keystone Dedicated
Logistics, LLC v. JGB Enters., Inc., 77 A.3d 1, 11 (Pa. Super. 2013), I
cannot conclude that the trial court abused its discretion in excluding this
evidence. Consequently, I would avoid the question of harmlessness, which
need not be reached to affirm the ruling in this case, thus avoiding any risk
that the concept might be applied too broadly in a future case.
The Parrs’ third and related issue concerns the trial court’s order
granting Ford’s motion in limine number 9. Therein, Ford maintained that
the Parrs’ expert reports “rely on . . . statistical studies and compilations
-9-
J-E02007-14
involving motor vehicle accident data to reach conclusions that the subject
Excursion . . . caused [the Parrs’] injuries. . . . [E]ach of these statistical
studies is irrelevant and inadmissible [because the Parrs] cannot show that
each [underlying] accident occurred under substantially similar
circumstances as the Parr accident.” Memorandum of Law in Support of
Ford’s Motion in Limine No. 9 at 3-4. As well, Ford urged the trial court to
find that, even if relevant, the experts’ supporting studies and datasets were
so prejudicial in effect as to eclipse their probative value. See Pa.R.E. 403.
The majority provides an accurate account of the relevant law.
See Maj. Op. at 28-30. For my purposes, it suffices to say that the
proponent of prior accident evidence bears the burden of establishing that
the prior accident or accidents are substantially similar to the accident at
issue. See Blumer v. Ford Motor Co., 20 A.3d 1222, 1228
(Pa. Super. 2011). “It is not a matter of finding exact similarity between the
incidents, but some similarity must be shown to prevent speculation.”
Harkins v. Calumet Realty Co., 614 A.2d 699, 705 (Pa. Super. 1992).
Under Pennsylvania law, this burden applies equally whether the evidence in
question consists of a single accident or a statistical compilation of accidents.
See Hutchinson v. Penske Truck Leasing Co., 876 A.2d 978, 985-86
(Pa. Super. 2005). Furthermore, in Hutchinson, this Court held that the
proponent must establish the substantial similarity of the accidents
underlying a compilation to the accident sub judice regardless of whether it
is submitted to establish the existence or notice of a defect or causation.
- 10 -
J-E02007-14
Id. at 985 (citing Spino v. John S. Tilley Ladder Co., 671 A.2d 726, 735
(Pa. Super. 1996)). In Hutchison, we found reversible error where the trial
court admitted prior accident evidence, ostensibly to establish the
defendant’s state of mind for purposes of punitive damages, where the
plaintiff failed to establish substantial similarity of the prior accident
evidence. Id. at 985-86; see also generally Majdic v. Cincinnati Mach.
Co., 537 A.2d 334, 341 (Pa. Super. 1988). Therefore, the Parrs have no
obvious source of relief for their burden of establishing the requisite
similarity, which I would find that the Parrs did not meet.
In their opposition to Ford’s motion in limine, the Parrs were vague
about precisely what studies and data compilations they wished to admit.
More importantly, they never expressly sought to establish with particularity
that each study and data compilation was compiled from accidents that were
substantially similar to their own. Instead, they adopted a somewhat
dubious interpretation of the deposition testimony of one of Ford’s expert
witnesses in another case as evidence that Ford somehow had conceded that
“there is a direct relationship between the amount of roof crush and the risk
of serious head, face, and neck injuries in rollover crashes,” a proposition
that, in any event, did not establish substantial similarity. The Parrs’
Memorandum of Law in Opposition to Ford’s Motion in Limine No. 9 at 5
(quoting deposition of Jeff Croteau, in which he appears to agree that there
is a correlation between a “higher degree of roof collapse” and “a higher
degree of head injury,” but rejects the inference of causation between roof
- 11 -
J-E02007-14
crush and injury exacerbation). Later, the Parrs argued that the evidence
was admissible in the alternative to provide the foundation for their experts’
opinions, see Pa.R.E. 703, or for purposes of impeachment of the credibility
of Ford’s expert witnesses, see Pa.R.E. 607(b). See The Parrs’
Memorandum of Law in Opposition to Ford’s Motion in Limine No. 9 at 8-9.
However, the Parrs never made a case for the substantial similarity of the
accidents underlying any one study or data compilation. Oral argument on
the parties’ motions in limine brought no more information pertinent to the
substantial similarity inquiry. In short, the Parrs failed to do before the trial
court—and largely fail to do before this Court—what the law obliged them to
do in order to rebut Ford’s assertion that these studies were inadmissible for
want of sufficient similarity.
As a rule, arguments not materially preserved in the trial court are
beyond our purview. See Pa.R.A.P. 302(a); cf. Commonwealth v. May,
887 A.2d 750, 761 (Pa. 2005) (“The absence of contemporaneous objections
renders . . . claims waived.”); Commonwealth v. Baumhammers,
960 A.2d 59, 73 (Pa. 2008) (deeming the absence of contemporaneous
objections to constitute waiver notwithstanding the appellant’s claim that the
issues in question were raised before trial). Furthermore, while the Parrs
asserted in their post-trial motion their general contention that the trial court
improperly and categorically excluded post-2001 studies and compilations of
data, they again failed to identify with particularity each study or data
compilation and a basis upon which the trial court reasonably could find that
- 12 -
J-E02007-14
the substantial similarity test was satisfied. This, too, constitutes waiver.
See Pa.R.C.P. 227.1; Phillips v. Lock, 86 A.3d 906, 918 (Pa. Super. 2013)
(deeming waived for purposes of appeal issues that were not objected to at
trial or raised in post-trial motions).
The majority so holds, but in doing so it arguably makes substantive
conclusions about the evidence in question, notwithstanding the waiver
consideration that, elsewhere, the majority seems to find dispositive.
See Maj. Op. at 30-31. In particular, the majority, like the trial court,
seems to put a great deal of stock in the distinction between accident
fatalities and the accident in question. See id. at 30; T.C.O. at 6-7. I would
not suggest that such a distinction, standing alone, warrants a finding that a
study is not sufficiently similar to be admitted, and it troubles me that the
majority’s opinion may, in a later case, be cited for that proposition.
Whether a given injury leads to death (as was true in at least some of the
compilations at issue) or quadriplegia (as is true in this case) may reflect a
difference of degree rather than one of kind in the product defect and events
that caused the injury. In this case, Mrs. Parr suffered a severed spinal
cord. Certainly, a small difference in the kinematics of the injury could have
resulted in fatal injury arising from a similar or identical mechanism, which,
- 13 -
J-E02007-14
in turn, might support a finding of substantial similarity, provided other
factors, too, pointed to that conclusion.8
Because I believe that the Parrs barely even tried to establish the
substantial similarity of the studies and data compilations in this case, I
would not reach the merits of their challenge to the trial court’s substantive
findings as to substantial similarity. I would reject the Parrs’ argument
solely because they waived it. Accordingly, the details of the parties’
dialogue with the trial court on the issue, as well as the trial court’s own
reasoning, are immaterial to this appeal. The Parrs simply failed to make
the showing necessary to establish a basis for such a detailed review of the
studies. I would deny relief strictly on that basis.
Finally, following considerable deliberation, I join the majority’s ruling
rejecting the Parrs’ challenge to the trial court’s decision to issue a
permissive adverse inference instruction based upon the Parrs’ alleged
spoliation of the evidence, albeit with one reservation. The majority notes
that the governing standard in determining whether a spoliation sanction is
warranted requires the trial court to determine, inter alia, the degree of fault
of the party who rendered the evidence unavailable and the degree of
prejudice suffered by the opposing party arising from the unavailability of
____________________________________________
8
In fairness to the majority, it notes other gaps in the Parrs’ showing
that the trial court did not address. Nonetheless, these unnecessary
analyses, too, might provide bases for questionable rulings in future cases.
- 14 -
J-E02007-14
the evidence. Fault is determined by examining the alleged spoliator’s duty
to preserve the evidence and the presence or absence of bad faith. Finally,
duty is established where the party responsible for the evidence knows that
litigation is pending or likely and it is foreseeable that discarding the
evidence would prejudice the defendants. See Maj. Op. at 34 (quoting
Creazo v. Medtronic, Inc., 903 A.2d 24, 28-29 (Pa. Super. 2006)).
The majority contends that “there is no dispute that the Parrs were
responsible for the destruction of the Excursion and[,] thus, were at fault.”
Id. at 35. However, this conclusion skips a critical analytic step in imputing
fault to a party accused of failing to preserve evidence material to litigation.
Cf. Eichman v. McKeon, 824 A.2d 305, 314-15 (citing Baliotis v. McNeil,
870 F. Supp. 1285, 1290 (M.D.Pa. 1994) for the proposition that “a
component of fault is the presence or absence of good faith”). While it is
undisputed that the Parrs relinquished the Excursion to their insurance
company, it is not clear what, if any, representations or demands were made
by the insurance company or by the Parrs or their counsel. Even if this does
not implicate their legal duty, it certainly implicates the determination
whether the Parrs acted in bad faith, an explicit element of the test for fault.
That modest reservation aside, I believe that our Supreme Court’s
decision in Schroeder v. Commonwealth, Dep’t of Transp., 710 A.2d 23
(Pa. 1998), requires affirmance. In that strict products liability case, unlike
in this case, the record indicated that plaintiff’s counsel had made
arrangements to preserve the damaged vehicle, agreeing to remit a storage
- 15 -
J-E02007-14
fee to the company that salvaged the vehicle. Only later, the plaintiff
released title to the insurance company. Thereafter, the insurer released
title to the salvage company, which then disposed of the vehicle before
certain experts could examine it, despite the pending litigation. Id. at 24-
25. Our Supreme Court ruled that the trial court and Commonwealth Court
had erred in granting summary judgment, the most extreme sanction for
spoliation, and a ruling that reflected the trial court’s finding of bad faith.
However, the Court directed that, on remand, the trial court provide an
adverse inference instruction to the jury based upon the plaintiff’s failure to
preserve evidence that was manifestly material to their claims. Id. at 28.
Given that the Supreme Court compelled the administration of such a jury
instruction under circumstances where fault was no more clearly—and
perhaps less clearly—established than in this case, thereby implicitly
affirming the trial court’s finding of bad faith, it would be incongruous to
intrude upon the trial court’s discretionary determination that such an
instruction was called for in this case. Hence, like the majority, I would
uphold the trial court’s decision in this regard.
Judge Ott joins this concurring opinion.
- 16 -
J-E02007-14
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/22/2014
- 17 -