Chase v. General Motors Corp.

• Decision Date: 06 September 1988
• Docket Number: No. 86-3637,86-3637
• Citation: 856 F.2d 17
• Court: U.S. Court of Appeals — Fourth Circuit
• Parties: 26 Fed. R. Evid. Serv. 1010 Betty Jo CHASE and Charles M. Chase, Plaintiffs-Appellees, v. GENERAL MOTORS CORPORATION, Defendant-Appellant, and B & M Chevrolet-Cadillac Corporation, Defendant.

Page 17

856 F.2d 17

26 Fed. R. Evid. Serv. 1010

Betty Jo CHASE and Charles M. Chase, Plaintiffs-Appellees, v. GENERAL MOTORS CORPORATION, Defendant-Appellant and B & M Chevrolet-Cadillac Corporation, Defendant.

No. 86-3637.

United States Court of Appeals Fourth Circuit.

Argued Feb. 3, 1988.

Decided Sept. 6, 1988.

Joseph Gregory Finnerty, Jr. (Philip L. Cohan, Joel A. Dewey, Robert H. Stier, Jr., Piper & Marbury, Donald R. Parshall, Jr., General Motors Corp., on brief), for defendant-appellant.

Joel I. Klein (Rebecca L. Brown, Onek, Klein & Farr, Bertram M. Goldstein, Goldstein, Weltchek & Associates, Richard L. Douglas, Rice, Douglas & Singleton, on brief), for plaintiffs-appellees.

Before WIDENER, MURNAGHAN, and SPROUSE, Circuit Judges.

WIDENER, Circuit Judge:

General Motors Corporation (GM) appeals from a judgment on a jury verdict awarding damages to the plaintiffs in this products liability case. GM's contention on appeal is that it is not liable to the Chases on the brake defect theory that plaintiffs relied upon at trial because the collision in which they were involved was unavoidable. Further, GM argues that it was prejudiced by the district court allowing into evidence the plaintiffs' videotaped brake tests and in not allowing GM's own videotaped tests to rebut that of the plaintiffs. GM also claims that it was prejudiced at trial by the introduction of evidence of vehicle recall. Because the plaintiffs' videotaped tests fail to comply with the standard for admissibility in this circuit and because the evidence of recall was improperly admitted, we vacate and remand for a new trial.

At the outset, we should say we are of opinion that GM adequately preserved its claims of error. We also think that, with the exclusion of the substantial segments of evidence that this opinion requires, it is more appropriate not to express an opinion on the sufficiency of the evidence, which we do not.

On January 23, 1982, the Chases were involved in a collision with another vehicle on a two-lane highway near their home in West Virginia. Plaintiffs were returning from Williamsport, Maryland about midnight after a tennis party and headed south on U.S. Route 11. There had been snow accumulation and cold temperatures in the area for several days. The road was covered with snow and ice.

A northbound vehicle slipped on the ice and crossed the center line out of control into the path of the plaintiffs' car. The Chase automobile, a 1980 Chevrolet Citation, was proceeding downhill and on a curve to the left. Chase, driving the car, applied the brakes to avoid hitting the oncoming vehicle. The Chase car turned somewhat to its left and the cars collided, with the front right corner of the Chase car, striking the front of the other auto. Mrs. Chase, who had been riding on the passenger side, received a severe blow to the head, resulting in brain damage and physical impairment. Chase and the other driver were not seriously injured.

Plaintiffs brought this products liability action against GM and B & M Chevrolet-Cadillac Corporation (B & M) on January 10, 1984. They alleged negligence in design, strict liability and breach of implied warranty concerning the brake design on the Citation. The complaint charges that the allegedly defective brake design was the direct and proximate cause of the injuries incurred by Mrs. Chase. During the trial, B & M was voluntarily dismissed. The case was sent to the jury on theories of strict liability and negligence in design, and the jury returned a verdict in favor of the plaintiffs for $2,211,309.45 for Mrs. Chase and $50,000.00 for Chase.

The plaintiffs were allowed, over the objection of GM, to introduce into evidence videotaped braking tests, one performed by the National Highway Traffic Safety Administration (NHTSA) and another by Dr. Rudolf Limpert. Accompanying the NHTSA video was a written report describing the test using an M-3 Citation ¹ and the conclusions drawn therefrom. The report was also admitted into evidence. Dr. Limpert testified as an expert witness for the appellees explaining his videotape of the test which used other M-3 Citations. Dr. Limpert further testified to his conclusions about the accident based on the test results.

GM attempted to admit a videotape made by its expert, William Gillespie, performing the NHTSA/Limpert test protocol on five other vehicles. The trial court sustained plaintiffs' objection to the admissibility of Gillespie's test videotape and explanatory testimony. The court stated that the ground for sustaining the motion was that the vehicles in GM's test were not 1980 Citations with brake components identical to that of the Chases' car.

The NHTSA and Limpert tests, alleged to demonstrate the physical principle in dispute, were performed in daylight, on flat, straight surfaces under controlled protocols at test facilities or on an airport runway. The tests used experienced drivers at regulated vehicle speeds and who steered straight ahead. Brake pedal force in the NHTSA tests was mechanically applied to produce single axle lock. The NHTSA tests were performed on three different surface types under wet conditions. Dr. Limpert, applying the brakes himself, similarly tested the vehicle on both wet and dry surfaces.

In contrast, the conditions appertaining the night of the wreck were quite different. Chase was driving downhill on a slight curve to the left and was so turning his car at the time of the accident. While we must, for present purposes, credit his trial testimony that he did not further turn his car to the left, Chase admits it was already slightly so turning at the time of the wreck. The night was quite cold and the surface of the road was covered with snow and ice. Instead of applying measured or pre-ascertained brake pressure, Chase instinctively applied the brakes. "It was an instinct, to apply the brakes," Chase testified. He testified that he was trying to stop the car as soon as he could. Thus, the conditions obtaining at the scene of the accident were vastly different from any test performed either by NHTSA or the plaintiffs' expert, Dr. Limpert.

In the case of Gladhill v. General Motors Corp., 743 F.2d 1049 (4th Cir.1984), we were presented with a fact situation indistinguishable from that of the case at hand. The Gladhills, like the Chases, had purchased a 1980 Chevrolet Citation. The automobile was purchased in November 1979. Their claim was that the brakes would occasionally lock with only slight pressure on the pedal, causing the car to skid. In September 1980, Gladhill, while driving alone, left the road and collided with a utility pole. His claim was that the faulty brakes on the car had caused him to leave the road. His accident occurred at night on a hill sloping downwards at a sharp curve between the two elbows of the curve. GM was permitted to introduce a videotape demonstration of a brake test of a Citation which had been conducted at a GM test facility on a flat straight asphalt surface in daylight by an experienced test driver. GM introduced the test to show that, while a rear brake might have locked, the car would continue to travel in a straight line. The jury verdict and the judgment were for GM, and the plaintiffs appealed. We reversed and stated, at p. 1051 of the opinion, that: "Indeed, the circumstances of the accident, as alleged, are so different from this test as to make the results largely irrelevant, if not misleading." We continued, on p. 1052: "It is possible to call almost any evidence of this type 'a demonstration to illustrate a principle,' but when the demonstration is a physical representation of how an automobile behaves under given conditions, those conditions must be sufficiently close to those involved in the accident at issue to make the probative value of the demonstration outweigh its prejudicial effect." We continued that the conditions of the demonstration in Gladhill were dissimilar in such fundamental and important respects that the risk of prejudice to the plaintiffs outweighed the probative value of the evidence. 743 F.2d at 1052.

In the case before us, the Chase car was going downhill, the test cars were on a flat surface; the Chase car was on a road covered with ice and snow, the test cars were on roads either dry or merely wet or damp; the Chase car was turning slightly to the left at the time the brakes were applied the test cars were steered in a straight line; the Chase accident occurred in subfreezing temperature, the temperature at the tests was not subfreezing; and Chase applied the brakes instinctively to stop as quick as he could, the drivers of the test cars applied measured force to the brakes. Thus, the conditions of the tests performed both by the plaintiffs' expert and by NHTSA, as in Gladhill, were so dissimilar to the conditions existing at the time of the accident "... in such fundamental and important respects that the risk of prejudice to ... [GM] outweighed the probative value of the evidence." 743 F.2d at 1052. We further note that Gladhill, on retrial, required the exclusion of "... all evidence generated by this experiment, including testimony pertaining thereto." 743 F.2d at 1052 and Fn. So, on retrial, not only will the videotapes be excluded but also the NHTSA test results and testimony obtaining thereto. ²

GM also complains that the trial court excluded a videotape and test results produced by it under similar conditions as those offered by the plaintiffs except that the...