484 F.3d 329 (5th Cir. 2007), 04-30420, Evans v. Ford Motor Co.

Docket Nº:04-30420.
Citation:484 F.3d 329
Party Name:Mark EVANS, Plaintiff-Appellee-Appellant, Continental Casualty Company, Intervenor-Appellee-Appellant, v. FORD MOTOR COMPANY, Defendant-Appellant-Appellee, Ford Motor Credit Company, Defendant-Appellee.
Case Date:April 10, 2007
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 329

484 F.3d 329 (5th Cir. 2007)

Mark EVANS, Plaintiff-Appellee-Appellant,

Continental Casualty Company, Intervenor-Appellee-Appellant,

v.

FORD MOTOR COMPANY, Defendant-Appellant-Appellee,

Ford Motor Credit Company, Defendant-Appellee.

No. 04-30420.

United States Court of Appeals, Fifth Circuit.

April 10, 2007

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Carter B. Wright (argued), Law Office of Carter B. Wright, Ernest N. Souhlas, The Souhlas Law Firm, Covington, LA, Eugene G. Taggart, Taggart, Morton, Ogden, Staub, Rougelot & O'Brien, New Orleans, LA, for Evans.

Kirk Lindsay Landry, Keogh, Cox & Wilson LTD, Baton Rouge, LA, for Continental Casualty Co.

Robert William Maxwell (argued), McCranie, Sistrunk, Anzelmo, Hardy, Maxwell & McDaniel, Hilliard Finch Kelly, III, Gieger, Laborde & Laperouse, Covington, LA, for Ford Motor Co.

Appeals from the United States District Court for the Eastern District of Louisiana.

Before GARWOOD, BENAVIDES and OWEN, Circuit Judges.

OWEN, Circuit Judge:

Mark Evans sued Ford Motor Company and Ford Motor Credit Company under the Louisiana Products Liability Act, claiming that a defective 1999 Ford Explorer injured him. At the conclusion of a trial, in which a jury found the Explorer's transmission was unreasonably dangerous because of a nonconformity with an express warranty, 1 Ford Motor Company moved for judgment in its favor as a matter of law, contending there was no factual or legal basis for the finding that an express warranty had been breached. That motion was denied, but the district court ordered a remittitur, which Evans rejected. At the conclusion of a second trial on damages that resulted in a substantially lower award, the district court entered judgment against Ford Motor Company. Ford appeals the denial of its motion for judgment as a matter of law and asserts there was error in the jury charge, while Evans complains of the second trial and lower damage award. Because we conclude that there was no failure to conform to an express warranty, we reverse and render judgment for Ford.

I

Extreme Nissan, a car dealership in New Orleans, purchased a used 1999 Ford Explorer from Ford Motor Credit Company at a Florida auction. The Explorer was still within the original 36-month/36,000 warranty issued by Ford Motor Company. At the auction, the Explorer was classified as a "green light" vehicle, which meant that it should not have any mechanical defects.

The Explorer and other vehicles purchased by Extreme Nissan at the Florida auction were shipped to New Orleans and unloaded from a transportation truck onto Extreme Nissan's lot. Mark Evans, then an assistant used car manager at Extreme Nissan, and one of his fellow employees began parking the cars and trucks. Evans drove the Explorer into a parking lane, thought he put it in "Park," and exited the vehicle with the motor running and the door open. As he was talking to a co-worker, the Explorer moved backward. Its door hit him, knocking him to the ground, and the front left wheel ran over his right leg.

Evans sued Ford Motor Company and Ford Motor Credit Company in Louisiana state court, asserting causes of action based on the Louisiana Products Liability

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Act. He also asserted various negligence claims against Ford Motor Credit Company. The defendants removed the suit to federal district court based on diversity jurisdiction.

Among other contentions, Evans asserted that the Explorer had a "perceived park" defect--arising from a 3/16ths-inch insert plate in the steering column between the park and reverse gears--that deceived him into believing that the Explorer was in "Park," when it in fact was not. Evans alleged that the Explorer was unreasonably dangerous: (1) in construction or composition; (2) in its design; and (3) due to inadequate warnings. Although Evans did not allege in his complaint that the Explorer failed to conform with an express warranty, this contention was listed as an issue in the pre-trial order, 2 which also cited the relevant section of the Louisiana Products Liability Act. 3

After a Daubert 4 hearing, the district court excluded the testimony of Evans's expert witness regarding transmissions, and Evans did not introduce any expert testimony that the 1999 Ford Explorer's transmission was defective. Evans did offer the lay testimony of Wayne Labit, an Extreme Nissan co-worker, who drove the Explorer a week after Evans's accident. Labit testified that on two occasions, he thought he had placed the vehicle in "Park," but after a few seconds the Explorer "jumped" or "popped" out of gear and moved in reverse. He also testified that although the shift indicator showed that the transmission was in the "P" position, the indicator had to be moved beyond the "P" for the park position to engage.

At the close of Evans's case-in-chief, Ford moved for judgment as a matter of law. The district court granted that motion in...

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