Products Liability Law Daily Wrap Up, DESIGN AND MANUFACTURING DEFECTS—MOTOR VEHICLES—Pa. Super.: $5.9 million verdict in crashworthiness case upheld despite objections by Ford, (Jan 11, 2016)

By Susan Lasser, J.D.

A $5.9 million verdict will stand in a crashworthiness case brought by an injured driver against Ford Motor Company stemming from an automobile accident in which the driver’s car’s airbag did not deploy, the Pennsylvania Superior Court held, affirming a trial court’s rejection of the vehicle manufacturer’s post-trial objections to the trial court’s evidentiary rulings and jury instructions. In its non-precedential decision, the appellate court disagreed with the manufacturer that the Pennsylvania Supreme Court’s decision in Tincher v. Omega Flex, Inc. warranted a new trial (Cancelleri v. Ford Motor Co., January 7, 2016, Lazarus, A.).

The driver was hit by another vehicle which turned left into his path. He was wearing his seatbelt in his 2005 Mercury Sable, but his airbag did not deploy. During the collision, the driver’s body moved forward and he hit his head against the windshield. He received emergency treatment at the accident scene and then was hospitalized and treated for a four-inch laceration on his scalp. The next day, he had difficulty feeling his legs. An MRI showed disc herniation and spinal cord compression, requiring immediate spinal fusion surgery. As a result of the accident, the driver has been confined to a wheelchair and suffers from a number of medical problems.

Lawsuit and trial. He filed suit against Ford Motor Company, the manufacturer of his car, and Ray Price Motors, the seller of the car, alleging negligence and strict liability, among other claims. His wife also brought a claim for loss of consortium. Prior to trial, the driver and his wife limited their claims to strict liability under crashworthiness design defect and malfunction theories, breach of implied warranty, and loss of consortium, and they withdrew all claims as to the seller on the final day of the eight-day trial. The jury unanimously found in their favor on the claims of crashworthiness design defect and loss of consortium, and the verdict included an award of $5,940,706.86. Ford filed a timely post-trial motion, and oral argument on the motion was held on November 14, 2014. A few days later, the Pennsylvania Supreme Court issued its decision in Tincher v. Omega Flex, Inc., 104 A.3d 328 (Pa. 2014), and Ford filed a post-argument notice of supplemental authority regarding Tincher. The trial court issued an opinion and order denying Ford’s post-trial motion on January 9, 2015, and entered judgment against Ford on January 20, 2015. Ford appealed, raising three questions for review.

Tincher v. Omega Flex, Inc. In Tincher, the Pennsylvania high court addressed the standard of proof required to determine whether a product was in a defective condition in strict product liability cases. The court held that a plaintiff can pursue a strict liability claim asserting that a product is defective under a “consumer expectations” theory, a “risk-utility” theory, or both. For a plaintiff proceeding on a risk-utility theory, proof of risks and utilities are part of the burden to prove that the harm suffered was due to the defective condition of the product. The credibility of witnesses and testimony offered, the weight of evidence relevant to the risk-utility calculus, and whether a party had met the burden to prove the elements of the strict liability cause of action were issues for the finder of fact. However, the Pennsylvania Supreme Court did not adopt the Restatement (Third) of Torts, and, thus, the state remains a Second Restatement jurisdiction.

New trial and crashworthiness. The manufacturer argued that the Tincher decision required a new trial because the trial court should have submitted to the jury the question of whether the driver’s vehicle was unreasonably dangerous, and because it should have been allowed to introduce evidence of applicable government and industry standards. The maker argued specifically that the jury should have been asked to consider risk-utility factors in determining whether the vehicle was unreasonably dangerous. According to the appellate court, while consideration of whether a product was defective or unreasonably dangerous was a question, based on Tincher, for the finder of fact in strict product liability cases, the current case was a crashworthiness case and Tincher did not involve a crashworthiness case, nor did it mandate specific jury instructions to be used in any type of strict liability matter. The superior court noted that in crashworthiness cases, the jury must determine whether the vehicle was defective in design as well as whether an alternative, safer, and practicable design existed at the time of design that could have been used instead. As such, the jury’s considerations in crashworthiness cases, including the current case, already involve “proof of risks and utilities” as to whether “the harm suffered was due to the defective condition of the product.” Also, the court agreed with the trial court that the jury instructions were neither erroneous nor prejudicial toward the car maker. Thus, the appellate court affirmed the trial court’s decision.

Further, the superior court rejected the manufacturer’s contention that government and industry standards should have been in evidence for jury consideration. However, the state supreme court in another decision held that such evidence should be excluded because it tends to mislead the jury in its inquiry. Thus, the court agreed with the trial court’s finding that the proposed evidence of standards was inadmissible.

Crash test evidence. Ford also argued that it was error to exclude Insurance Institute for Highway Safety and National Highway Traffic Safety Administration crash tests, which it argued would have significantly impeached the driver’s defect theory because the tests were conducted by industry and government organizations. Ford asserted that the crash tests were relevant to impeach the driver’s expert testimony. However, the superior court affirmed the trial court’s finding that the expert witness “could not be impeached with evidence of industry standards previously precluded … or on tests that were not elicited on direct examination.” Thus, there was no error in precluding evidence of the crash tests in question and the appellate court affirmed the trial court’s analysis.

Malfunction theory. Finally, the appellate court rejected the manufacturer’s argument that the trial court erroneously instructed the jury on a theory of malfunction. Ford contended that the driver had withdrawn the theory, that the theory was irrelevant to the driver’s injuries, and that the instruction misstated the law regarding malfunction. The superior court noted that a plaintiff can proceed simultaneously on design defect and malfunction theories in a crashworthiness case. The court affirmed the trial court’s reasoning that the instructions were not given in error and did not result in prejudice toward the manufacturer. The trial court found that the driver’s simultaneous advancement of a design defect claim under the crashworthiness doctrine and a malfunction claim was not inconsistent with appellate case law, and that the driver proved the occurrence of a malfunction.

The case is No. 267 MDA 2015.

Attorneys: Bruce S. Zero (Powell Law) for John A. Cancelleri. William J. Conroy (Campbell Campbell Edwards & Conroy, PC) for Ford Motor Co.

Companies: Ford Motor Co.

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