Parr, J. v. Ford Motor Company

J-E02007-14
2014 Pa. Super. 281
JOSEPH AND APRIL PARR, : IN THE SUPERIOR COURT OF
HUSBAND AND WIFE, INDIVIDUALLY : PENNSYLVANIA
AND AS 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 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, SHOGAN, ALLEN,
OTT, WECHT, STABILE AND JENKINS, JJ.
OPINION BY SHOGAN, J.:FILED DECEMBER 22, 2014
Plaintiffs-Appellants, Joseph and April Parr (“the Parrs”), husband and
wife, individually and as parents and guardians of their minor daughter,
Samantha Parr, appeal from the August 31, 2012 judgment of the Court of
Common Pleas of Philadelphia County, which was entered following the
denial of the Parrs’ motion for post-trial relief. Appellees are Defendants
Ford Motor Company, McCafferty Ford Sales, Inc. doing business as
J-E02007-14
McCafferty Auto Group, McCafferty Ford of Mechanicsburg, Inc., and
McCafferty Ford Company (collectively “Ford”). Following our review of the
voluminous record, and in consideration of the applicable law and arguments
of the parties, we affirm.
On July 21, 2009, the Parrs’ 2001 Ford Excursion, which they
purchased as a “used” vehicle in 2007, was struck by a van that ran a stop
sign, causing the Parrs’ vehicle to spin clockwise, hit a guardrail, and roll
down a nineteen-foot embankment. Amended Complaint, 8/26/11, at ¶¶
14, 26–28; N.T., 3/8/12, at 30. Joseph Parr was driving at the time of the
accident; his wife, April Parr, their three minor children, and Margaret Parr,
Joseph’s mother, were occupants of the vehicle. Amended Complaint,
8/26/11, at ¶¶ 20–25; N.T., 3/8/12, at 31. All passengers, who all wore
their seatbelts, were injured; occupants on the driver’s side of the vehicle,
Joseph Parr and children Tyler and Carilann Parr, sustained comparatively
minor injuries. Amended Complaint, 8/26/11, at ¶¶ 20–25, 31. Margaret
Parr, Joseph Parr’s fifty-seven-year-old mother, who sat in the second row
on the passenger side, is not involved in this case, and her injuries were not
identified in the amended complaint. Amended Complaint, 8/26/11, at ¶
25.1 Daughter Samantha, who was sitting in the third row on the passenger
1
Parrs’ Exhibit P-8, which is an expert report by Donald Friedman to Parrs’
counsel dated June 29, 2011, describes Margaret Parr’s injury as “a
-2-
J-E02007-14
side, sustained a fractured skull, broken collarbone, fractured eye orbital, a
lacerated liver, and facial lacerations. Amended Complaint, 8/26/11, at ¶
30. April Parr, sitting in the front passenger seat, sustained a spinal cord
injury and was rendered a quadriplegic. Amended Complaint, 8/26/11, at ¶
29; N.T., 3/8/12, at 33.
Emergency responders employed the jaws of life2 to extract April Parr
from the Excursion; during that process, the roof and pillar structures of the
vehicle were destroyed. N.T., 3/9/12 (Afternoon Session), at 35–38. The
parties stipulated that shortly after the accident in July 2009, the Parrs’ Ford
Excursion was released to the Parrs’ insurer, which sold the vehicle, and the
automobile was destroyed. N.T., 3/15/12 (Morning Session), at 30–31.
The Parrs filed a complaint against Ford Motor Company and the Ford
dealership that sold them their 2001 Ford Excursion on December 28, 2009,
and an amended complaint on August 26, 2011, contending that April Parr’s
and Samantha Parr’s injuries resulted from roof crush when the automobile
rolled down the embankment. Amended Complaint, 8/26/11, at ¶¶ 28, 40.
The Parrs alleged that the vehicle’s roof and restraint system were
defectively designed under the crashworthiness doctrine of strict products
fractured hand.” Parrs’ Exhibit P-8, Report of Donald Friedman, 6/29/11, at
3.
2
“Jaws of Life,” a trademark of Hurst Performance, Inc., are hydraulic
rescue tools used by emergency rescue personnel to assist vehicle
extrication of crash victims. http://www.jawsoflife.com.
-3-
J-E02007-14
liability, and they asserted additional claims sounding in negligence.
Amended Complaint, 8/26/11.
Trial in the matter commenced on March 6, 2012, and continued over
the ensuing three weeks, culminating on March 23, 2012, with a defense
verdict. The jury indicated on the verdict form that the Parrs did not prove:
(1) that the Excursion’s roof design was defective when it “left the control of
Ford and that there was an alternative, safer design that was practicable
under the circumstances,” or (2) “that Ford was negligent in its design of the
roof structure on the 2001 Ford Excursion when it left Ford’s control and that
there was an alternative, safer design that was practicable under the
circumstances.” Jury Verdict Form, 3/23/12, at ¶¶ 1, 3. The jury thus did
not reach the issues of causation or damages.
The Parrs filed post-trial motions on March 29, 2012. Both parties
filed briefs, and the trial court denied the motions on August 31, 2012,
entering judgment in favor of Ford that day. This timely appeal followed
on September 10, 2012, in which the Parrs challenge several pretrial
evidentiary rulings and an aspect of the trial court’s charge to the jury. Both
the trial court and the Parrs complied with Pa.R.A.P. 1925.
A panel of this Court filed a memorandum affirming the judgment in
favor of Ford. Parr v. Ford Motor Company, 2793 EDA 2012, ___ A.3d
___ (Pa. Super. filed December 24, 2013) (unpublished memorandum).
-4-
J-E02007-14
Thereafter, the Parrs filed a motion for reargument en banc. We granted the
motion and heard oral arguments on August 5, 2014. This matter is now
ripe for disposition.
The Parrs raise the same four issues in this appeal that they identified
in their Pa.R.A.P. 1925(b) statement, which are as follows:
A. Whether the Trial Court committed an error of law and
abused its discretion when it denied the Parrs’ Motion in Limine
No. 1 to preclude Ford from presenting evidence of its “diving,”
“torso augmentation” theory, which was discredited and
superseded by the National Highway Traffic Safety
Administration (NHTSA)’s Final Rule dated May 12, 2009?
B. Whether the Trial Court committed an error of law and
abused its discretion when it granted Ford’s Motion in Limine
No. 3 to preclude references to post-2001 NHTSA standards and
rulemaking documents dated 2001 to present, on the basis that
the Excursion was originally manufactured and sold in 2001?
C. Whether the Trial Court committed an error of law and
abused its discretion when it granted Ford’s Motion in Limine
No. 9 and altogether precluded the Parrs from offering statistical
evidence prepared by NHTSA, IIHS, FARS, and/or NASS as to
rollover fatalities involving the 2001 Excursion and comparable
vehicles on the basis that the Parrs were unable to prove that
the statistics derived from other rollover accidents that [sic]
were virtually identical to the subject accident?
D. Whether the Trial Court committed an error of law and
abused its discretion when it denied the Parrs’ Motion in Limine
No. 10 to preclude Ford from: (a) presenting—and consequently
filling the record with—evidence that the 2001 Excursion was not
preserved; and (b) obtaining a spoliation charge when Ford
suffered no prejudice resulting from the vehicle’s destruction
since neither party’s experts had access to the vehicle and since
Ford’s theory was based upon the assumption that all occupants
in rollover vehicles are injured in the same way?
The Parrs’ Brief at 7–8.
-5-
J-E02007-14
We note initially that our Supreme Court adopted section 402A of the
Restatement (Second) of Torts in Webb v. Zern, 220 A.2d 853 (1966), and
reaffirmed the Second Restatement’s vitality in Tincher v. Omega Flex,
Inc., ___ A.3d ___, ___, 2014 WL 6474923 *62 (Pa. filed November 19,
2014 (“Pennsylvania remains a Second Restatment jurisdiction”). Section
402A states:
§ 402A Special Liability of Seller of Product for Physical
Harm to User or Consumer
(1) One who sells any product in a defective condition
unreasonably dangerous to the user or consumer or to his
property is subject to liability for physical harm thereby caused
to the ultimate user or consumer, or to his property if
(a) the seller is engaged in the business of selling
such a product, and
(b) it is expected to and does reach the user or
consumer without substantial change in the condition
in which it is sold.
(2) The rule stated in Subsection (1) applies although
(a) the seller has exercised all possible care in the
preparation and sale of his product, and
(b) the user or consumer has not bought the product
from or entered into any contractual relation with the
seller.[3]
RESTATEMENT (SECOND) OF TORTS, § 402A (1965).
3
The term “seller” includes the “manufacturer” of a product. RESTATEMENT
(SECOND) OF TORTS, § 402A, cmt. f.
-6-
J-E02007-14
In order to prevail in such 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. Reott v. Asia Trend, Inc., 7 A.3d 830 (Pa. Super. 2010). A product
is defective “when it is not safe for its intended use.” Weiner v. American
Honda Motor Co., Inc., 718 A.2d 305, 308 (Pa. Super. 1998).
The crashworthiness doctrine most typically arises in the context of
motor vehicle accidents. See, e.g., Raskin v. Ford Motor Co., 837 A.2d
518 (Pa. Super. 2003). It was first explicitly recognized as a specific subset
of product liability law by this Court in Kupetz v. Deere & Co., Inc., 644
A.2d 1213 (Pa. Super. 1994), and is defined as “the protection that a motor
vehicle affords its passenger against personal injury or death as a result of a
motor vehicle accident.” Id. at 1218.
A crashworthiness claim requires proof of three elements.
First, the plaintiff must prove that the design of the vehicle was
defective, and that at the time of design an alternative, safer,
and practicable design existed that could have been incorporated
instead. Second, the plaintiff must identify those injuries he or
she would have received if the alternative design had instead
been used. Third, the plaintiff must demonstrate what injuries
were attributable to the defective design.
In recognizing the crashworthiness doctrine in Kupetz,
this Court relied upon our Supreme Court’s prior decision in
McCown v. International Harvester Co., 463 Pa. 13, 342
A.2d 381 (1975), which adopted the principle tenet of the
crashworthiness doctrine, i.e., manufacturers are strictly liable
for defects that do not cause the accident but nevertheless cause
an increase in the severity of injuries that would have occurred
without the defect.
-7-
J-E02007-14
Gaudio v. Ford Motor Company, 976 A.2d 524, 532 (Pa. Super. 2009)
(some citations omitted).
The parties herein differed regarding how the injuries to the Parrs
occurred. The Parrs asserted that as the Excursion rolled down the
embankment, the driver’s side led the roll, and the roof over the “trailing”
passenger side of the vehicle crushed into the passenger compartment.
Amended Complaint, 8/26/11, at ¶ 27, 28. In support, the Parrs alleged
that April Parr and Samantha Parr, who sat on the passenger side of the
vehicle,4 sustained significant injuries “as a result of the collapsing roof,”
whereas the passengers on the driver’s side of the Excursion, “over which
the roof did not significantly collapse,” incurred minor injuries. Id. at ¶¶
29–31.
Ford’s position was premised on a “diving” and “torso augmentation”
defense. Ford’s experts opined that when the Excursion flipped upside
down, centrifugal force pulled passengers out of their seats and pushed their
heads against the vehicle’s roof, a phenomenon called diving. N.T., 3/7/12
(Morning Session), at 36–38. April Parr’s head theoretically was already in
contact with the roof when the roof struck the ground as the vehicle rolled
over; as her head came to an abrupt halt, her torso continued to move,
4
Notably absent is any reference to Margaret Parr, who also sat on the
passenger side and who, according to Donald Friedman’s report, sustained a
fractured hand.
-8-
J-E02007-14
causing her to break her neck. Id. This phenomenon is known as torso
augmentation. Id. at 38. Mr. Michael J. Leigh, Ford’s expert on roof
strength who the Parrs called on cross-examination, explained Ford’s theory
regarding why April Parr sustained significant injuries compared to Joseph
Parr, as follows:
Q. Well, they [Joseph and April] both rolled over, they both
were subjected to centrifugal force. But if you looked at that
roof, the roof over April Parr had what we call crush or
deformation of a total residual of 11 inches; is that right?
A. I know that the roof was significantly deformed on that
side of the vehicle. And that means that that part of the roof
sustained a significant impact.
And if the other side of the roof was not deformed like
that, that means that side of the roof did not sustain a significant
impact.
And if the roof over Mr. Parr did not sustain a significant
impact, then I’m not surprised that he did not get injured.
But I would not be surprised at all that his head did touch
the roof in that event because if he’s that tall and experiencing
centrifugal force, his head is going to touch the roof, as well. He
was just fortunate enough not to experience the impact that,
unfortunately, his wife experienced.
Q. And you’re saying it didn’t come about from this 11 inches
of crush or deformation? It just came from centrifugal force;
right?
A. The deformation is an indication of the severity of the
impact that that part of the roof experienced.
The injury that Mrs. Parr received is an indication of the
severity of the impact that she experienced being in the same
place as that part of the roof. So her injury and the deformation
are associated with the impact, but it doesn’t mean that the
deformation of the roof caused her injury. You can’t go that far.
-9-
J-E02007-14
All you can say is that the deformation and the injury are
associated with the impact. And Mr. Parr didn’t experience that
severe of an impact. That’s the difference.
N.T., 3/7/12 (Morning Session), at 39–41.
We proceed to address the Parrs’ challenges to the trial court’s
evidentiary rulings. A motion in limine is used before trial to obtain a ruling
on the admissibility of evidence. Northeast Fence & Iron Works, Inc. v.
Murphy Quigley Co., Inc., 933 A.2d 664 (Pa. Super. 2007). “It gives the
trial judge the opportunity to weigh potentially prejudicial and harmful
evidence before the trial occurs, thus preventing the evidence from ever
reaching the jury.” Commonwealth v. Reese, 31 A.3d 708, 715 (Pa.
Super. 2011) (en banc). A trial court’s decision to grant or deny a motion in
limine “is subject to an evidentiary abuse of discretion standard of review.”
Id.
Questions concerning the admissibility of evidence lie within the
sound discretion of the trial court, and we will not reverse the
court’s decision absent a clear abuse of discretion.
Commonwealth Financial Systems, Inc. v. Smith, 15 A.3d
492, 496 (Pa. Super. 2011) (citing Stumpf v. Nye, 950 A.2d
1032, 1035–1036 (Pa. Super. 2007)). “An abuse of discretion
may not be found merely because an appellate court might have
reached a different conclusion, but requires a manifest
unreasonableness, or partiality, prejudice, bias, or ill-will, or
such lack of support so as to be clearly erroneous.” Grady v.
Frito–Lay, Inc., 576 Pa. 546, 839 A.2d 1038, 1046 (Pa. 2003).
Keystone Dedicated Logistics, LLC v. JGB Enterprises, Inc., 77 A.3d 1,
11 (Pa. Super. 2013). In addition, “to constitute reversible error, an
evidentiary ruling must not only be erroneous, but also harmful or prejudicial
-10-
J-E02007-14
to the complaining party.” Winschel v. Jain, 925 A.2d 782, 794 (Pa.
Super. 2007) (citing McClain v. Welker, 761 A.2d 155, 156 (Pa. Super.
2000)).
The Parrs’ motions in limine numbers one, three, and nine all dealt
with the issue of “roof crush” versus “diving” and “torso augmentation.” In
particular, the Parrs’ motion in limine number one sought to preclude Ford
from presenting evidence of its diving/torso augmentation theory, which the
Parrs asserted was discredited and superseded by the National Highway
Traffic Safety Administration (NHTSA)’s Final Rule dated May 12, 2009. The
Parrs assert Ford admitted that in 2001, comparable vehicles existed with
much stronger roofs than that of the Excursion. Ford acknowledged that
roof crush may cause injuries in some cases but defended, in this case, on
the basis of its diving/torso augmentation theory.
The Parrs asserted pretrial, at trial, and in their appellate brief as
follows:
Although N[H]TSA’s “roof crush” theory versus the
industry’s “diving/torso augmentation” was a heavily contested
issue for years prior to 2001, the year of the Excursion’s
manufacture, in 2009, NHTSA determined once and for all that
“roof crush” and not “diving/torso augmentation” was the cause
of head and neck injuries—such as those sustained by Mrs.
Parr—among belted occupants in rollover accidents. NHTSA
based its finding upon extensive epidemiological studies from
2001-2009, and resultantly promulgated its Final Rule on Federal
Motor Vehicle Safety Standard (FMVSS) No. 216 on May 12,
2009, which required more stringent roof-crush standards.
-11-
J-E02007-14
The Parrs’ Brief at 26 (emphasis in original). The Parrs reference the
following:
Roof Crush as a Cause of Injury
A number of commenters including GM, Ford,
[and] Nissan[5] . . . stated that the statistical
correlation . . . found between roof intrusion and
injury does not establish a causal relationship
between roof deformation and injury. . . . [T]he
studies . . . merely suggest that there is a
relationship. . . . “[W]hen you compare rollover
accidents that have significant roof/pillar deformation
with other rollover accidents that have very little or
no roof/pillar deformation, you are not comparing
similar accidents with respect to roof-to-ground
impact severity. Just the fact that two vehicles are
in a rollover with greater than 2 quarter turns does
not mean they are in the same or even similar
impact severities.” . . . Ford stated that “[t]he
amount of roof deformation is only an indication of
the severity of the impact between the roof and the
ground.” . . . GM stated that “[o]bservations of
injury occurrence at the end of a rollover collision
reveal nothing regarding the relationship of roof
deformation, roof strength, or roof strength-to-
weight ratio injury causation.” Nissan stated that
deformation and injury severity are both
independently associated with roof impact severity.
The Parrs’ Brief at 17; “Federal Motor Vehicle Safety Standards; Roof Crush
Resistance; Phase–In Reporting Requirements” (“FMVSS”),
5
Various auto manufacturers criticized the NHTSA’s reliance on a study that
linked roof intrusion and serious injury, and commented that a statistical
correlation did not establish a causal relationship between the two. The
agency agreed, to an extent, acknowledging that “as a general principle, a
statistical correlation does not in itself prove that a causal relationship
exists.” 74 Fed.Reg. 22348, 22379.
-12-
J-E02007-14
74 Fed.Reg. 22348, 22378–22379 (final rule promulgated May 12, 2009)
(codified at 49 C.F.R. §§ 571, 585) (“FMVSS 216 Final Rule”). The NHTSA
has explained:
[Some] arguments appear to imply that any difference in roof
intrusion must be due to a difference in impact severity rather
than roof strength or design . . . .
There are logical reasons to believe that a collapsing roof
that strikes an occupant’s head at the nearly instantaneous
impact velocity experienced when structures deform might cause
serious injury. These types of injuries were documented . . . in a
detailed investigation of 43 rollover crashes. The agency
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 injuries.
The Parrs’ Brief at 17–18; FMVSS 216 Final Rule, 74 Fed.Reg. at 22379.
As noted, the Parrs’ motion in limine number one sought to preclude
presentation of Ford’s diving/torso augmentation theory to the jury,
contending that after forty years of research, studies, tests, and experience,
NHTSA specifically discredited this theory in FMVSS 216 Final Rule, and
validated “roof crush” as the cause of head and neck injuries sustained by
belted occupants in rollover motor vehicle accidents. In light of that finding,
the Parrs maintain, NHTSA amended the roof crush rule to require
substantial increases in roof strength applicable to all consumer vehicles.
The Parrs argue the trial court should have deferred to NHTSA’s expertise to
preclude Ford from introducing evidence of diving and torso augmentation at
trial.
-13-
J-E02007-14
The trial court concluded that the Parrs’ support for their motion was
lacking and stated:
[U]pon review of the documentation provided to the Court to
support their motion, notably, the 2009 Amendment to the
FMVSS (Federal Motor Vehicle Safety Standard) although
suggestive of appellants’ argument, failed to convince this Court
that either of their arguments [was] meritorious. First, although
the 2009 Amendment did cite statistical studies which found a
correlation between roof crush and injury in rollover accidents,
appellants’ contention that the NHTSA amendment conclusively
determined that a causal relationship existed between roof crush
and head and neck injury in rollover accidents, to the exclusion
of torso augmentation, was not proven. Although a correlation
was shown[,] it did not provide, as appellants’ were arguing,
evidence showing that it was conclusive. As such, this Court
determined that appellants’ contention was without merit and
denied their pre-trial motion which sought to preclude appellees
from presenting evidence that “diving” or torso augmentation
caused plaintiff, April Parr’s injuries. Both appellees and
appellants presented extensive expert testimony during trial on
the subject of “roof crush” vs. “diving” as a cause of appellant,
April Parr’s injuries. In the end, the jury concluded that Ms.
Parr’s injuries resulted from “diving” not “roof crush” and found
for the appellees.
Trial Court Opinion, 3/1/13, at 4–5.
Our review of FMVSS 216 Final Rule reveals that it did not
categorically exclude diving/torso augmentation as a cause of head and neck
injury in rollover crashes. The document merely states that in some cases
roof crush “might” cause serious injury, which is a proposition with which
Ford agreed.6 Nothing in NHTSA’s conclusion categorically excluded torso
6
The Parrs suggested throughout trial that Ford’s experts categorically
denied that roof crush can ever cause injury; Ford’s experts clearly
-14-
J-E02007-14
augmentation or diving as a potential cause of injury in rollover crashes.
Thus, the Parrs’ position that NHTSA determined “once and for all” that roof
crush and not diving/torso augmentation caused head and neck injuries,
such as those sustained by Mrs. Parr, among belted occupants in rollover
accidents, simply is not supported by the literature.
While we have not found a Pennsylvania appellate case directly on
point, we cite with approval Campbell v. Fawber, 975 F. Supp. 2d 485
disagreed. For example, Ford’s biomechanical engineering expert, Dr.
Catherine Corrigan, testified:
I’ve seen instances where roof crush has caused injury. And I
have not opined that it doesn’t.
* * *
I have seen instances where deformation of the roof has
contributed to the injury. I have seen instances where it has
not.
So the fact that there are researchers who have said that
roof crush can cause injury, that would be correct.
N.T., 3/19/12 (Morning Session), at 29. Dr. Corrigan later reiterated that
“there is plenty of data out there to show instances where roof crush does
matter in injury and does cause injury. In this case, because of the
kinematics, it was not the cause of the injury.” Id. at 28. Ford’s expert on
roof strength, Michael J. Leigh, testified that “Ford doesn’t dispute that there
could be situations where roof crush or roof deformation causes an injury.”
N.T., 3/7/12 (Morning Session), at 7, 34.
-15-
J-E02007-14
(M.D.Pa. 2013).7,8 The Campbell Court considered this precise issue and
rejected it out of hand.
Nothing contained in the agency’s response suggests that the
final rule categorically excluded torso augmentation or diving as
a cause of head and neck injury in a rollover crash. To the
contrary, the NHTSA’s response was resolutely
probabilistic. Furthermore, [the plaintiff] has shown nothing in
the NHTSA’s regulations that would suggest that the agency’s
study of roof crush injuries could prevent a party from
presenting at trial evidence of an alternative explanation.
Id. at 501 (emphasis added)(footnote omitted).9 The trial court properly
declined the Parrs’ motion in limine number one and permitted Ford to put
its diving/torso augmentation theory before the jury.
7
In their brief on reargument, the Parrs fail to acknowledge the federal
court’s decision in Campbell.
8
While “federal court decisions do not control the determinations of the
Superior Court,” Kleban v. National Union Fire Insurance Co., 771 A.2d
39, 43 (Pa. Super. 2001), whenever possible, Pennsylvania courts “follow
the Third Circuit [courts] so that litigants do not improperly ‘walk across the
street’ to achieve a different result in federal court than would be obtained in
state court. [Cellucci v. General Motors Corp., 676 A.2d 253, 255 n.1
(Pa. Super. 1996)] (citing Commonwealth v. Negri, 213 A.2d 670 (Pa.
1965), and Murtagh v. County of Berks, 634 A.2d 179 (Pa. 1993).”
NASDAQ OMX PHLX, Inc. v. PennMont Securities, 52 A.3d 296, 303
(Pa. Super. 2012); Werner v. Plater-Zyberk, 799 A.2d 776, 782 (Pa.
Super. 2002) (same).
9
The Parrs assert that the NHTSA’s conclusion that roof crush is a cause of
injury is entitled to deference under Chevron v. National Resources
Defense Council, 467 U.S. 837 (1984). The Parrs’ Brief at 29. In
Chevron, the Supreme Court held that courts must give deference to an
agency’s reasonable interpretation of the statute that it administers.
Chevron, 476 U.S. at 842–843. This claim, as well, was addressed by the
Campbell Court, and we concur with its conclusion, as follows: “The court
disagrees with [the plaintiff’s] argument that the NHTSA conclusively
-16-
J-E02007-14
The Parrs next contend the trial court erred when it granted Ford’s
motion in limine number three to preclude all references to NHTSA
rulemaking documents after 2001 and particularly, NHTSA 216 Final Rule,
“on the basis that the [2001] Excursion was designed, manufactured, and
sold in 2001,” eight years before the Final Rule’s publication. The Parrs’
Brief at 31. The Parrs sought to admit evidence of these rulemaking
documents to establish causation, to dispute Ford’s diving/torso
augmentation theory, and to impeach Ford’s experts’ reliance upon that
theory. The Parrs’ Brief at 33. The Parrs maintain that the trial court relied
upon precedent concerning whether this evidence was admissible to
establish a “defect,” which was inapplicable to the Parrs’ theory of roof crush
causation. They suggest the 2001 date may have relevance to notice or
negligence, but it has no relevance to the issue of causation or
impeachment. Id.
Ford responds that the trial court acted within its discretion in
excluding reference to post-2001 rulemaking activities that culminated in
FMVSS 216 Final Rule. It suggests that evidence regarding a post-
manufacture regulatory standard is irrelevant because it does not go to
whether the Excursion’s roof was defectively designed when it left the Ford
determined that roof crush is the exclusive cause of head and neck injury in
rollover collisions and, therefore, it is unnecessary to address [the] Chevron
argument.” Campbell, 975 F. Supp. 2d at 502 n.4.
-17-
J-E02007-14
plant in 2001. Ford maintains that the documents also do not prove
causation, they merely suggest that the Parrs’ causation theory is possible,
and that issue was not in dispute because Ford admitted it at trial. Thus,
Ford argues that any marginal relevance was far outweighed by the
likelihood that evidence of inapplicable government standards was likely to
mislead the jury. Moreover, Ford maintains that the Parrs’ claim is moot
because the Parrs presented some of the evidence that they now assert was
wrongly excluded.
In defending its decision to preclude references to NHTSA rulemaking
documents after 2001, the trial court stated the following:
Pennsylvania law requires that a plaintiff prove that an allegedly
defective vehicle was defective at the time of manufacture.
Duchess v. Langston Corporation, 769 A.2d 1131, 1142 (Pa.
2001). However appellants sought to introduce NHTSA
standards and rulemaking subsequent to the year the subject
vehicle was manufactured. It was this Court’s determination
that the relevant time frame for assessing the design and/or
defectiveness of the subject 2001 Ford Excursion was up to and
including the year it was manufactured, 2001. The standards
that were in place at that time (2001) were what was relevant to
appellants’ causes of action against the appellee, Ford Motor
Company. At trial, appellees were permitted and did introduce
evidence of NHTSA standards that existed up to the year 2001.
This Court found appellants’ contention that they should have
been permitted to introduce NHTSA standards and rulemaking
subsequent to the year 2001 without merit and accordingly
granted appellees’ pretrial motion precluding such evidence.
Trial Court Opinion, 3/1/13, at 5–6.
The trial court’s order dated March 5, 2012, and filed March 27, 2012,
relating to Ford’s motion in limine number three, precluded reference to
-18-
J-E02007-14
“FMVSS 216, the 2009 Amendments to FMVSS 216, or Related Notices of
Proposed Rulemaking . . . .” Order, 3/27/12, at 1 (docket entry 145).
Initially, the Parrs failed to note the place in the record where the trial court
declined admission of fifteen studies and publications, which the Parrs
asserted were erroneously excluded by the trial court, thereby hampering
our ability to address the issue as to all of the documents. 10 We address the
10
Indeed, the Parrs initially failed to include any notes of testimony in the
record certified to us on appeal, and this Court was compelled to seek
supplementation of the record through our Prothonotary. As we stated in
Commonwealth v. Preston, 904 A.2d 1, 6–8 (Pa. Super. 2006) (en banc)
(some citations omitted):
The fundamental tool for appellate review is the official record of
the events that occurred in the trial court. Commonwealth v.
Williams, 552 Pa. 451, 715 A.2d 1101, 1103 (1998). To ensure
that an appellate court has the necessary records, the
Pennsylvania Rules of Appellate Procedure provide for the
transmission of a certified record from the trial court to the
appellate court. Id. The law of Pennsylvania is well settled that
matters which are not of record cannot be considered on appeal.
Commonwealth v. Bracalielly, 540 Pa. 460, 658 A.2d 755,
763 (1995). Thus, an appellate court is limited to considering
only the materials in the certified record when resolving an
issue. Commonwealth v. Walker, 878 A.2d 887, 888 (Pa.
Super. 2005). In this regard, our law is the same in both the
civil and criminal context because, under the Pennsylvania Rules
of Appellate Procedure, any document which is not part of the
officially certified record is deemed non-existent—a deficiency
which cannot be remedied merely by including copies of the
missing documents in a brief or in the reproduced record.
Commonwealth v. Kennedy, 868 A.2d 582, 593 (Pa. Super.
2005).
* * *
-19-
J-E02007-14
claim as it pertains to the trial court’s decision to preclude reference to the
documents related to FMVSS 216 Final Rule.
The trial court granted Ford’s motion in limine number three to the
extent it sought to exclude reliance on NHTSA standards and rulemaking
documents after 2001, the year the Parrs’ Excursion was manufactured. It
is undisputed that roof-strength standards in FMVSS 216 Final Rule did not
apply to the Excursion because the vehicle, at 8,800 pounds, is beyond the
“scope of [the] Safety Design Guideline, which stops at 8,500 pounds . . . .”
N.T., 3/7/12 (Morning Session), at 53, 83. The rulemaking documents Ford
sought to exclude in its motion in limine number three did not issue until
years after 2001; they dated from 2005, when the NHTSA issued notice of
proposed rulemaking to update FMVSS 216,11 to 2009, when NHTSA issued
the Final Rule. NPRM, “Federal Motor Vehicle Safety Standards; Roof Crush
It is not proper for either the Pennsylvania Supreme Court or the
Superior Court to order transcripts nor is it the responsibility of
the appellate courts to obtain the necessary transcripts.
In the absence of specific indicators that a relevant
document exists but was inadvertently omitted from the certified
record, it is not incumbent upon this Court to expend time, effort
and manpower scouting around judicial chambers or the various
prothonotaries’ offices of the courts of common pleas for the
purpose of unearthing transcripts . . . [that] never were formally
introduced and made part of the certified record.
11
The August 19, 2005 Notice of Proposed Rulemaking (“NPRM”) was not
an adopted standard, it was an open docket to receive comments regarding
the proposal by NHTSA. NHTSA issued an NPRM in 2008 as well. Ford’s
Motion in Limine No. 3, Exhibit B (docket entry 92).
-20-
J-E02007-14
Resistance, 70 Fed.Reg. 49223 (proposed Aug. 23, 2005); FMVSS 216 Final
Rule. Moreover, even after 2009, the updated standard did not apply to the
Excursion. The FMVSS Final Rule does not apply to vehicles of the
Excursion’s gross vehicle weight grading (i.e., between 6,000 and 10,000
pounds) until September 1, 2016. FMVSS 216 Final Rule, 74 Fed.Reg.
at 22348; Ford’s Motion in Limine No. 3, Exhibit D.
As we have stated, it is well settled that the decision to admit or
exclude evidence is vested in the sound discretion of the trial court and will
not be overturned on appeal absent an abuse of that discretion. Keystone,
77 A.3d at 11. Additionally, to be admissible, evidence must be relevant.
“Evidence that is not relevant is not admissible.” Pa.R.E.,
Rule 402, 42 Pa.Cons.Stat.Ann. Relevant evidence is defined as
evidence “having any tendency to make the existence of any fact
that is of consequence to the determination of the action more
probable or less probable.” Pa.R.E., Rule 401,
42 Pa.Cons.Stat.Ann. (emphasis added). Even if evidence is
relevant, it may be excluded if its probative value is outweighed
by, inter alia, the danger of unfair prejudice arising from its
presentation to the fact-finder. Pa.R.E., Rule 403,
42 Pa.Cons.Stat.Ann. “‘Unfair prejudice’ supporting exclusion of
relevant evidence means a tendency to suggest decision on an
improper basis or divert the jury’s attention away from its duty
of weighing the evidence impartially.” Commonwealth v.
Wright, 599 Pa. 270, 325, 961 A.2d 119, 151 (2008). “The
function of the trial court is to balance the alleged prejudicial
effect of the evidence against its probative value and it is not for
an appellate court to usurp that function.” Commonwealth v.
Parker, 882 A.2d 488, 492 (Pa. Super. 2005), aff’d on other
grounds, 591 Pa. 526, 919 A.2d 943 (2007).
Lykes v. Yates, 77 A.3d 27, 33 (Pa. Super. 2013) (emphasis in original).
-21-
J-E02007-14
We conclude the trial court correctly found that the standard enacted
in 2009, which is not applicable until 2016, cannot form the basis for liability
in this case, where the vehicle in question was manufactured in 2001. Thus,
evidence of the FMVSS 216 Final Rule in 2009 and rulemaking activities from
2005 and 2008 leading up to the amendment properly were excluded. The
Parrs were compelled to prove that the Excursion was defective at the time
it was made. See Duchess v. Langston, 769 A.2d 1131, 1142 (Pa. 2001)
(“[O]ur jurisprudence requires that products are to be evaluated at the time
of distribution when examining a claim of product defect.”). The FMVSS 216
Final Rule and rulemaking activities leading up to the amendment properly
were circumscribed by the trial court’s grant of Ford’s motion in limine
number three. See Dunkle v. West Penn Power Co., 583 A.2d 814, 816
(Pa. Super. 1990) (“[I]n a strict liability action against the manufacturer of a
product, safety standards promulgated after the sale of the product are
irrelevant and inadmissible to show that the product was defectively
designed or contained inadequate warnings when manufactured.”). See
also Oberreuter v. Orion Industries, Inc., 398 N.W.2d 206 (Iowa App.
1986); Aller v. Rodgers Machinery Manufacturing Co., Inc., 268
N.W.2d 830 (Iowa 1978); Rice v. James Hanrahan & Sons, 482 N.E.2d
833 (Mass. 1985); Cover v. Cohen, 461 N.E.2d 864 (N.Y. 1984); Turner v.
-22-
J-E02007-14
General Motors Corp., 584 S.W.2d 844 (Tex. 1979); Majdic v. Cincinnati
Machine Co., 537 A.2d 334 (Pa. Super. 1988).
Moreover, we reject the Parrs’ assertion that even if the post-2001
rulemaking evidence was inadmissible to prove a defect, it was admissible to
prove causation. The Parrs’ Brief at 33. As noted, we have determined that
the FMVSS 216 Final Rule and related documents demonstrated that roof
crush is one of several potential causes of injury in rollover accidents. The
record reveals that Ford readily admitted that fact. N.T., 3/7/12 (Morning
Session), at 33–34, 97; N.T., 3/19/12 (Morning Session), at 64–71; N.T.,
3/19/12 (Afternoon Session), at 27–28. Thus, 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. Pa.R.E. 401.
Further, despite the trial court’s ruling on Ford’s motion in limine
number three, the Parrs did, in fact, place the NHTSA Final Rule’s conclusion
before the jury. See, e.g., N.T., 3/7/12 (Morning Session), at 63; N.T.,
3/19/12 (Afternoon Session), at 33–36. Indeed, during his closing
argument, the Parrs’ counsel suggested to the jury, “And this business about
diving, torso augmentation, they can’t convince NHTSA of that fact; yet
they’re trying to convince you . . . .” N.T., 3/21/12 (Volume I), at 51. In
addition, the evidence encompassed by Ford’s motion in limine number three
-23-
J-E02007-14
was cumulative to the myriad references by the Parrs to the NHTSA and roof
crush causation. See, e.g., N.T., 3/7/12 (Morning Session), at 41–42, 57–
87; N.T., 3/7/12 (Afternoon Session), at 21–24, 102–104, 123–132, 138–
143; N.T., 3/8/12 (Morning Session), at 35–87, 104;. N.T., 3/8/12
(Afternoon Session), at 77; N.T., 3/15/12 (Afternoon Session), at 44–45;
N.T., 3/19/12 (Morning Session), at 27–29; N.T., 3/19/12 (Afternoon
Session), at 29–36, 72–83; N.T., 3/20/12 (Afternoon Session), at 28.
Also, in order for a trial court’s ruling on an evidentiary matter to
constitute reversible error requiring the grant of a new trial, the ruling must
be both legally erroneous and harmful to the complaining party. Winschel,
925 A.2d at 794. If the error in the admission of the evidence had no effect
on a verdict, the error does not require the grant of a new trial. Herein, the
Parrs assert that the admission of the documents would have proven
causation. As noted, however, the jury never reached the issue of
causation. Jury Verdict Form, 3/23/12.
The Parrs further suggest the trial court should have allowed them to
utilize the materials in order to impeach Ford’s expert witnesses. The Parrs’
Brief at 35–36. This argument fails. First, the record reveals that the Parrs
did impeach Ford’s experts with NHTSA’s conclusions regarding roof crush.
See, e.g., N.T., 3/19/12 (Afternoon Session), at 38–43 (impeaching Dr.
Corrigan with NHTSA’s conclusions); N.T., 3/7/12 (Morning Session), at 32–
-24-
J-E02007-14
34 (impeaching Michael Leigh with NHTSA's conclusions); N.T., 3/20/12
(Afternoon Session), at 29–30 (impeaching Dr. Roger Nightengale, a
research professor in the department of biomedical engineering at Duke
University, with NHTSA’s conclusions).
Second, Pa.R.E. 607(b) & cmt notes that “there are limits on the
admissibility of evidence relevant to the credibility of a witness,” including
the provisions of Pa.R.E. 403 whereby the 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,
undue delay, wasting time, or needlessly presenting cumulative evidence.”
Pa.R.E. 607 (b); Pa.R.E. 403. Thus, as Ford asserts, “For the same reasons
post-2001 NHTSA rulemaking documents were not admissible for their
truth,” they were not available for impeachment. Ford’s Brief at 32.
Finally, as Ford posits, “there was nothing to impeach Ford’s witnesses
on.” Ford’s Brief at 32. Ford’s experts conceded that roof crush may be a
cause of injury in some cases, see note 7 supra, which is precisely what the
post-2001 NHTSA rulemaking documents demonstrate. Hence, we conclude
the trial court did not abuse its discretion in granting Ford’s motion in limine
number three.
Next, related to the trial court’s grant of Ford’s motion in limine
number nine, the Parrs contend that they should have been permitted to
-25-
J-E02007-14
present statistical evidence prepared by NHTSA, the Insurance Institute for
Highway Safety (“IIHS”), the National Center for Statistics and Analysis,
Fatality Analysis Reporting System (“FARS”), and the National Automotive
Sampling System (“NASS”) concerning rollover fatalities involving Ford
Excursions and other “comparable” vehicles. The Parrs assert that the trial
court abused its discretion in granting Ford’s motion in limine number nine
to preclude post-2001 epidemiological studies and publications that
demonstrated that 2001–2004 Ford Excursions had rollover driver and
occupant death rates higher than comparable “large” and “extra-large” sport
utility vehicles, on the basis that the Parrs could not satisfy the
“substantially similar” test. The Parrs’ Brief at 39.
Ford contends the trial court acted within its discretion in excluding the
statistical studies because they involved a wide variety of accidents, injuries,
and vehicles. Ford asserts that because the Parrs failed to show the
requisite similarity to the instant accident, the studies, and the statistics
upon which they relied were not relevant within the meaning of
Pa.R.E. 401.12 Ford also avers that the studies were inadmissible hearsay
12
Pa.R.E. Rule 401(a) provides as follows:
Rule 401. Test for Relevant Evidence
Evidence is relevant if:
(a) it has any tendency to make a fact more or less probable
than it would be without the evidence . . . .
-26-
J-E02007-14
and highly prejudicial. Finally, Ford counters that notwithstanding the trial
court’s ruling, the Parrs’ counsel and experts presented many of these
statistics to the jury.
The trial court stated the following regarding this issue:
Appellants next argue that this court erred in granting
Appellee’s Motion in Limine No. 9 which sought to preclude any
references during trial to statistical evidence of other dissimilar
accidents. Both parties had an opportunity to argue this Motion
in Limine before this Court prior to trial. Appellants contend that
this Court committed an error of law and/or abused its discretion
when it granted Appellees’ Motion in Limine No. 9. According to
Appellants, this Court “altogether precluded Plaintiffs/appellants
from offering statistical evidence prepared by NHTSA, The
Insurance Institute for Highway Safety (IIHS), the Fatal Accident
Reporting System, and/or the National Automotive Sampling
System as to rollover fatalities involving the subject vehicle and
comparable vehicles on the basis that Appellees were unable to
prove that the statistics derived from other rollover accidents
that [sic] were virtually identical to the one in the instant
accident.”
As [A]ppellants acknowledge, it was their burden, as the
proponent of this evidence, to establish, to the court’s
satisfaction, the similarity between other accidents and the
subject accident before this evidence could have been admitted
for any purpose. Hutchinson v. Penske Truck Leasing Co.,
876 A.2d 978 (Pa. Super. 2005). During argument before this
Court, Appellants failed to show the required similarity between
the subject accident and those contained within the statistical
compilations. Notably, the IIHS reports, unlike the subject
accident, involved fatalities. Appellants could not establish that
the facts surrounding the accidents that comprised the statistical
analysis they wished to introduce before the jury were
While noting the rule is identical to F.R.E. 401, the comment to the Rule 401
states, in pertinent part: “Whether evidence has a tendency to make a given
fact more or less probable is to be determined by the court in the light of
reason, experience, scientific principles and the other testimony offered in
the case.” Pa.R.E. 401, cmt.
-27-
J-E02007-14
substantially similar to those in the subject accident. As it was
Appellants’ burden, this Court found that they had not met their
burden and granted Appellees’ Motion to Preclude the Statistical
Evidence.
Trial Court Opinion, 3/1/13, at 6–7. We agree with the trial court’s
conclusion that the Parrs failed to show that various expert reports and the
relevant statistical studies and compilations upon which those reports relied
were substantially similar to the instant case; thus, the trial court properly
granted Ford’s motion in limine number nine and circumscribed the
evidence.
The Parrs were precluded from referencing (1) data compiled by IIHS,
which contained fatality facts obtained from the FARS database; (2) IIHS
evidence that compared mortality rates of Ford Excursions in rollover
accidents to other large or extra-large sport utility vehicles from other
manufacturers involved in rollover accidents; and (3) IIHS documents
comparing roof strengths of various makes and models during rollover
accidents. This Court has stated:
Evidence of prior accidents involving the same
instrumentality is generally relevant to show that a
defect or dangerous condition existed or that the
defendant had knowledge of the defect. However,
this evidence is admissible only if the prior accident
is sufficiently similar to the incident involving the
plaintiff which occurred under sufficiently similar
circumstances. The burden is on the party
introducing the evidence to establish this similarity
before the evidence is admitted.
-28-
J-E02007-14
Lockley v. CSX Transp., Inc., 5 A.3d 383, 395 (Pa. Super.
2010) (citation omitted).
“Determining whether and to what extent proffered
evidence of prior accidents involves substantially, similar
circumstances will depend on the underlying theory of the case
advanced by the plaintiffs.” Bitler v. A.O. Smith Corp., 400
F.3d 1227, 1239 (10th Cir. 2004). “If the evidence of other
accidents is substantially similar to the accident at issue in a
particular case, then that evidence will assist the trier of fact by
making the existence of a fact in dispute more or less probable,
and the greater the degree of similarity the more relevant the
evidence.” Id. “Naturally, this is a fact-specific inquiry that
depends largely on the theory of the underlying defect in a
particular case.” Id. Accordingly, a wide degree of latitude is
vested in the trial court in determining whether evidence is
substantially similar and should be admitted. Lockley, 5 A.3d
at 395.
Blumer v. Ford Motor Co., 20 A.3d 1222, 1228–1229 (Pa. Super. 2011).
It is noteworthy, as well, that statistical compilations of accidents and
studies that cite statistical compilations of accidents, must satisfy the
substantial similarity test. Hutchinson v. Penske Truck Leasing Co., 876
A.2d 978 (Pa. Super. 2005). In Penske, this Court rejected as “frivolous
and illogical” the claim that “expert reports do not constitute ‘other accident’
evidence because [the appellant] presented no single other accident to the
jury but rather presented only the reports’ conclusions from studies of
hundreds of other accidents.” Id. at 985. “To suggest, as [Mr.] Hutchinson
does, that the underlying nature of this evidence of other accidents was
transformed, merely because it was compiled, analyzed, and summarized to
-29-
J-E02007-14
generate conclusions, defies both logic and common sense.” Id. at 985-
986.
It is clear that the Parrs were compelled to satisfy the substantial
similarity test, and because they did not, the statistical compilations properly
were excluded. Therefore, we agree with the trial court that the evidence in
question did not meet the substantial similarity test. For example, the facts
from the FARS database referenced by the Parrs included passenger vehicle
deaths in frontal impacts and side impacts as well as rollovers, some
involving single vehicle accidents and others occurring in multi-vehicle
crashes. The Parrs’ Brief at 38–39. Other publications and data the Parrs
sought to admit reported mortality rates, roadway design, and roof strength
evaluations of large luxury cars, large family cars, small pick-up trucks, with
little or no mention of the specifics of each accident cited therein. Id. at 39–
40. See, e.g., IIHS status report, “The Risk of Dying in One Vehicle Versus
Another,” Vol. 40, No. 3, March 19, 2005, the Parrs’ Exhibit 13; the Parrs
Brief at 39. The publications involved fatalities, not neck injuries, did not
necessarily relate to Ford Excursions, and failed to account for seat belt
usage and other variables.
The record reflects that the Parrs did not present evidence as to the
substantial similarity of the reports to the Excursion, the accident, or the
circumstances in this case. Thus, none of the information in the reports was
-30-
J-E02007-14
shown to be directly relevant to the Excursion and to the accident at issue.
The Parrs made no attempt to demonstrate that the underlying accidents in
the statistical compilations were substantially similar to the instant accident.
The Parrs had the burden to prove substantial similarity, and they failed to
carry the burden. Penske.13 The issue lacks merit.
The Parrs’ final issue relates to whether the trial court committed an
error of law and abused its discretion when it denied the Parrs’ motion in
limine number ten to preclude Ford from: (a) presenting evidence that the
2001 Excursion was not preserved and (b) obtaining a spoliation charge.
Specifically, the Parrs contend the trial court erred in issuing a spoliation
charge to the jury and in permitting extensive introduction of spoliation
evidence where Ford was unable to demonstrate any prejudice that resulted
from the destruction of the 2001 Excursion.
Ford proffers that the trial court’s decision to instruct the jury that it
could infer that the Excursion contained evidence unfavorable to the Parrs
was within the court’s broad discretion. The Parrs stipulated that they failed
to preserve the vehicle even though they had ample opportunity to do so
13
Despite the grant of Ford’s Motion in Limine No. 9, the trial court
permitted the Parrs to cross-examine Ford’s experts with statistics and
studies. See, e.g., N.T., 3/8/12 (Morning Session), at 49–56 (use of NASS
studies); N.T., 3/15/12 (Afternoon Session), at 42–48 (use of NASS
studies); N.T., 3/16/12 (Morning Session), at 124–125 (FARS data); N.T.,
3/19/12 (Morning Session), at 4–6, 17–19 (use of IIHS data, use of NASS
studies).
-31-
J-E02007-14
after retaining counsel. Thus, Ford never had the chance to examine the
vehicle, and Ford’s experts explained how the vehicle’s absence negatively
impacted their analyses. Ford maintains that any error in this regard was
harmless because the Parrs asserted that the excluded evidence would have
aided their case on causation, but the jury did not reach causation in
returning a defense verdict. Thus, Ford responds that the Parrs cannot show
that the trial court committed an error of law that controlled the outcome of
the case.
The trial court resolved this issue as follows:
This Court initially deferred ruling on the motion.
However, prior to making a decision this Court did permit
appellee, Ford, to introduce facts about the unavailability of the
vehicle and its impact on the experts’ investigation into the
cause of the accident and the injuries sustained by the
occupants. As such, [A]ppellants’ counsel during cross-
examination of [A]ppellees’ experts called into question their
opinions and conclusions, based upon the fact that the subject
vehicle was not available for them to examine and inspect.
Further, at trial the parties stipulated as to the facts
surrounding the unavailability of the vehicle. Notably,
[A]ppellants stipulated that two weeks after the accident and
after hiring counsel, they released the vehicle to their insurance
company who in turn sold the vehicle which was then destroyed.
Appellants further stipulated that they did not attempt to locate
the vehicle until after it had been destroyed and that appellees
were not notified of legal action until after the vehicle was
[destroyed].
In light of the above stipulation and arguments and briefs
of counsel, this Court denied [A]ppellants’ Pre-trial Motion to
Preclude and accordingly allowed the jury to make whatever
conclusions it deemed proper. Accordingly, this Court gave a
permissive adverse inference instruction to the jury, instructing
-32-
J-E02007-14
that it could, but was not required to, draw a negative inference
against appellants from the destruction and thus absence of the
subject vehicle. Clearly appellants, despite their hiring of
counsel and their knowledge of their pursuit of a legal action
resulting from the accident, transferred the subject vehicle out of
their possession resulting in it being subsequently destroyed,
thereby preventing appellees from having the vehicle inspected
so as to properly defend themselves from [A]ppellants’
allegations.
Trial Court Opinion, 3/1/13, at 7–8.
“Spoliation of evidence” is the failure to preserve or the significant
alteration of evidence for pending or future litigation. Pyeritz v.
Commonwealth, 32 A.3d 687, 692 (Pa. 2011). “When a party to a suit has
been charged with spoliating evidence in that suit (sometimes called “first-
party spoliation”), we have allowed trial courts to exercise their discretion to
impose a range of sanctions against the spoliator.” Id. (citing Schroeder v.
Commonwealth, Department of Transportation, 710 A.2d 23, 27 (Pa.
1998)) (footnotes omitted). This Court has stated:
“When reviewing a court’s decision to grant or deny a
spoliation sanction, we must determine whether the court
abused its discretion.” Mount Olivet Tabernacle Church v.
Edwin L. Wiegand Division, 781 A.2d 1263, 1269 (Pa. Super.
2001) (citing Croydon Plastics Co. v. Lower Bucks Cooling &
Heating, 698 A.2d 625, 629 (Pa. Super. 1997) (recognizing that
“[t]he decision whether to sanction a party, and if so the
severity of such sanction, is vested in the sound discretion of the
trial court”)). Such sanctions arise out of “the common sense
observation that a party who has notice that evidence is relevant
to litigation and who proceeds to destroy evidence is more likely
to have been threatened by that evidence than is a party in the
same position who does not destroy the evidence.” Mount
Olivet, 781 A.2d at 1269 (quoting Nation–Wide Check Corp.
v. Forest Hills Distributors, Inc., 692 F.2d 214, 218 (1st
-33-
J-E02007-14
Cir.1982)). Our courts have recognized accordingly that one
potential remedy for the loss or destruction of evidence by the
party controlling it is to allow the jury to apply its common sense
and draw an “adverse inference” against that party. See
Schroeder v. Commonwealth of Pa., Dep’t of Transp., 551
Pa. 243, 710 A.2d 23, 28 (1998). Although award of summary
judgment against the offending party remains an option in some
cases, its severity makes it an inappropriate remedy for all but
the most egregious conduct. See Tenaglia v. Proctor &
Gamble, Inc., 737 A.2d 306, 308 (Pa. Super. 1999) (“Summary
judgment is not mandatory simply because the plaintiff bears
some degree of fault for the failure to preserve the product.”).
To determine the appropriate sanction for spoliation, the
trial court must weigh three factors:[14]
(1) the degree of fault of the party who altered or
destroyed the evidence; (2) the degree of prejudice
suffered by the opposing party; and (3) whether
there is a lesser sanction that will avoid substantial
unfairness to the opposing party and, where the
offending party is seriously at fault, will serve to
deter such conduct by others in the future.
Mount Olivet, 781 A.2d at 1269–70 (quoting Schmid v.
Milwaukee Elec. Tool Corp., 13 F.3d 76, 79 (3d Cir. 1994)).
In this context, evaluation of the first prong, “the fault of the
party who altered or destroyed the evidence,” requires
consideration of two components, the extent of the offending
party’s duty or responsibility to preserve the relevant evidence,
and the presence or absence of bad faith. See Mt. Olivet, 781
A.2d at 1270. The duty prong, in turn, is established where:
“(1) the plaintiff knows that litigation against the defendants is
pending or likely; and (2) it is foreseeable that discarding the
evidence would be prejudicial to the defendants.” Id. at 1270–
71.
Creazzo v. Medtronic, Inc., 903 A.2d 24, 28–29 (Pa. Super. 2006).
14
While our review suggests the trial court has not explained its decision in
light of the weight of these factors, the Parrs do not state their issue in such
a manner, and we are able to evaluate the issue despite the lack of the trial
court’s analysis.
-34-
J-E02007-14
The record reveals that there is no dispute that the Parrs were
responsible for the destruction of the Excursion and thus, were at fault. The
stipulation concerning the destruction of the vehicle was as follows:
Two days after the accident, on July 23, 2009, Mr. Parr
took pictures of the subject Excursion while it was in storage at a
nearby towing company.
The Parrs retained [counsel] on August 4, 2009.
On August 4, 2009, Mr. Parr released the Ford Excursion to
Progressive Insurance Company.
On August 27, 2009, [the Parrs] signed off on the title for
the subject vehicle as a total loss.
The Excursion was sold on September 21, 2009, and,
thereafter, destroyed by the purchaser.
[The Parrs] and their counsel did not attempt to locate the
subject vehicle until October 9, 2009.
[The Parrs] initiated this action by filing a complaint on
January 5, 2010.
No notice was given to Ford Motor Company or McCafferty
Ford Sales of pending legal action prior to the date the vehicle
was disposed of.
No notice or opportunity to inspect the vehicle was given
to Ford Motor Company or McCafferty Ford Sales prior to the
date the vehicle was disposed of.
N.T., 3/15/12 (Morning Session), at 30–31.
We examine the factors to determine whether the trial court properly
denied the Parrs’ motion in limine number ten and chose the appropriate
sanction to impose. Clearly, the Parrs alone had the capacity to preserve
the Excursion given the fact that they hired counsel six to seven weeks
-35-
J-E02007-14
before the vehicle’s destruction. It was “foreseeable that discarding the
evidence would be prejudicial to the defendants,” Mt. Olivet Tabernacle
Church v. Edwin L. Wiegand Div., 781 A.2d 1263, 1271 (Pa. Super.
2001), because Mr. Parr took photographs of the vehicle two days after the
accident, indicating that he recognized the vehicle’s value as evidence.
Second, Ford clearly was prejudiced by the Excursion’s destruction.15
Multiple expert witnesses stated that their analyses would have been aided
by examination of the vehicle. Even the Parrs’ expert Dr. Geoffrey Germane
testified, “[I]n a rollover crash, the vehicle is the best witness. It contains
information about the rollover that might not be otherwise available.” N.T.,
3/15/12 (Morning Session), at 57. Furthermore, on cross-examination Ford
expert Dr. Catherine Ford stated, “I can’t say, unfortunately, exactly where
[April Parr] impacted because we don’t have the vehicle.” N.T., 3/19/12
(Afternoon Session), at 17. Ford expert Dr. Harry Lincoln Smith testified
that he “would have liked to” examine the Excursion, which was necessary in
“making a complete analysis.” Id. at 96.
15
We reject the Parrs’ suggestion that they did not have an advantage over
Ford because their experts similarly did not examine the Excursion. While
no Pennsylvania case has stated as much, we underscore our agreement
with other jurisdictions that a spoliator cannot avoid sanctions by arguing
“he has been prejudiced by his own dereliction.” Lord v. Nissan Motor
Co., Ltd., 2004 WL 2905323 (D.Minn. Dec. 13, 2004); see also Trull v.
Volkswagen of America, Inc., 187 F.3d 88, 95–96 (1st Cir. 1999)
(rejecting the plaintiffs’ arguments that the defendants were not unfairly
disadvantaged because the plaintiffs’ experts also could not examine the
subject vehicle).
-36-
J-E02007-14
Finally, the trial court had a range of sanctions from which to choose
once it decided to impose one. Ford had requested that the trial court grant
summary judgment as a sanction for the Parrs’ destruction of the Excursion.
Although the award of summary judgment against an offending party
remains an option in some cases, its severity makes it an inappropriate
remedy for all but the most egregious conduct. See Tenaglia v. Proctor &
Gamble, Inc., 737 A.2d 306, 308 (Pa. Super. 1999) (“Summary judgment
is not mandatory simply because the plaintiff bears some degree of fault for
the failure to preserve the product.”). Indeed, “dismissal of a complaint or
preclusion of evidence regarding an allegedly defective product is an
extreme action reserved only for those instances where an entire product or
the allegedly defective portion of a product is lost, spoiled or destroyed.”
Mensch v. Bic Corp., 1992 WL 236965 at 2 (E.D.Pa. Dec. 17, 1992)
(emphasis added); Woefel v. Murphy Ford Co., 487 A.2d 23 (Pa. Super.
1985).
In the instant case, the trial court chose to charge the jury that it was
permitted, although not required, to draw an adverse inference against the
Parrs for destruction of the Excursion, which was the least severe of the
possible sanctions. See Schroeder, 710 A.2d at 28. The Parrs do not, and
cannot, dispute that the permissive adverse inference instruction is a lesser
sanction than outright dismissal or the grant of summary judgment. See
-37-
J-E02007-14
Schroeder, 710 A.2d at 28 (instructing that “lesser sanction such as a jury
instruction on the spoliation inference is warranted”). The trial court did not
err in giving the lesser sanction of an adverse inference instruction.
Having concluded that the trial court did not abuse its discretion in any
of the evidentiary rulings identified by the Parrs, and for the above stated
reasons, the judgment in favor of Ford must be affirmed.
Judgment affirmed.
President Judge Emeritus Ford Elliott, President Judge Emeritus
Bender, Judge Bowes, Judge Allen, Judge Stabile and Judge Jenkins join the
Opinion.
Judge Wecht files a Concurring Opinion in which Judge Ott joins.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/22/2014
-38-