Eltiste v. Ford Motor Co.

• Decision Date: 28 July 2005
• Docket Number: No. ED 84814.,ED 84814.
• Citation: 167 S.W.3d 742
• Parties: Hal ELTISTE, Frances Eltiste, Rebecca Bremer and Leah Eltiste, by and through her next friend, Frances Eltiste, Appellant, v. FORD MOTOR COMPANY, Respondent.
• Court: Missouri Supreme Court

Page 742

167 S.W.3d 742

Hal ELTISTE, Frances Eltiste, Rebecca Bremer and Leah Eltiste, by and through her next friend, Frances Eltiste, Appellant, v. FORD MOTOR COMPANY, Respondent.

No. ED 84814.

Missouri Court of Appeals, Eastern District, Division Three.

June 28, 2005.

Motion for Rehearing and/or Transfer to Supreme Court Denied July 28, 2005.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Thomas J. Murray, Murray & Murray, Sandusky, OH, Eric W. Kruger, Rickerson, Kruger & Ratz, Omaha, NE, Daniel T. Ryan, Bollwerk & Ryan, St. Louis, MO, Terry W. Mackey, Hickey & Mackey, Cheyenne, WY, for appellant.

Robert T. Adams, Shook, Hardy & Bacon, Kansas City, MO, John Randolph, Baker, Donelson, Bearman, Caldwell & Berkowitz, Nashville, TN, for respondent.

CLIFFORD H. AHRENS, Presiding Judge.

Hal Eltiste ("Mr. Eltiste"), Frances Eltiste ("Mrs. Eltiste"), Rebecca Bremer, and Leah Eltiste¹ ("plaintiffs") appeal from the judgment of the trial court following jury verdicts in favor of defendant Ford Motor Company ("Ford") on plaintiffs' personal injury action.² Plaintiffs contend that the trial court erred in admitting a report of the Office of Defect Investigation ("ODI") of the National Highway Traffic Safety Administration ("NHTSA") and in preventing plaintiffs from impeaching that report ("2000 ODI report").³ Plaintiffs also assert that the trial court erred in limiting the discussion of their experts concerning documents from Ford to a verbatim reading of the documents. Plaintiffs further allege that the trial court erred in permitting Ford to amend its answer to assert the affirmative defense of lack of seat belt usage and in permitting Ford to introduce seat belt evidence relating to the issue of causation.

Viewed in the light most favorable to the judgment, the evidence is as follows. On May 22, 1994, a clear, sunny day, plaintiffs were riding in a 1991 Ford Aerostar van on Nebraska Highway 67, traveling approximately 60 miles per hour with the cruise control engaged. The driver of the Aerostar, Mr. Eltiste, tried to slow the vehicle down as it approached an intersection of another highway. Instead, the vehicle accelerated and went over an embankment, injuring several of the plaintiffs.

Prior to the accident of May 22, 1994, Mrs. Eltiste had experienced unexpected acceleration while driving the Aerostar with the cruise control engaged, which had resulted in the vehicle striking a tree. The Aerostar was inspected at a Ford dealership in Nebraska, Heritage Ford, Inc., but apparently no work was done on the cruise control. After the body of the car was repaired at a body shop, the vehicle was returned to the Eltistes several weeks prior to the May 22nd accident.

Plaintiffs filed suit against Ford, and asserted multiple causes of action including: strict liability — product defect; strict liability — failure to warn; breach of implied warranty; negligent manufacture, design, or failure to warn; negligence; failure to recall or retrofit defective design and/or manufacture; fraudulent concealment; and loss of consortium. Approximately two weeks prior to trial, Ford moved to amend its answer to include specifically the affirmative defense that the plaintiffs failed to mitigate damages by not using their seat belts. In its motion seeking leave to amend, Ford stated that it did not believe that the amendment was necessary, but "[o]ut of an abundance of caution," wanted to make the amendation. The trial court granted this motion and denied plaintiffs' motions in limine regarding the seat belt issue. Ford also filed an omnibus motion in limine, which included a request that the trial court preclude testimony by plaintiffs' experts that would interpret Ford documents as evidence of Ford's knowledge, intent, or state of mind. At in camera proceedings the trial court sustained Ford's omnibus motion in limine.

Several of the plaintiffs testified at trial regarding the accident of May 22, 1994. Mr. Eltiste testified that he had the cruise control engaged at the time of the accident and tried to disengage it by tapping on the brakes, but to no avail. He further stated that when he pumped the brakes, the Aerostar accelerated even faster, and his other efforts to slow down were to no avail. Mrs. Eltiste testified about the May 22nd accident and about the previous incident of sudden acceleration. Several witnesses testified about similar incidents that they experienced with sudden acceleration and cruise control in Ford vehicles.

Plaintiffs also had several experts testify, including Samuel Sero ("Sero") and Dr. Anthony Anderson ("Dr. Anderson"). Sero, a self-described "forensic engineer" has a B.S. in Electrical Engineering, is a member of the Society of Automotive Engineers, and worked for some years in various capacities as an electrical engineer before becoming a private consultant in 1979. Sero began consulting as a forensic engineer in 1989, investigating the causes of accidents. Sero testified regarding what he considered to be problems with the cruise control system of certain Ford vehicles, including 1991 Aerostars, and how electro-magnetic interference ("EMI") could cause sudden acceleration in cars with such cruise control systems without leaving physical evidence of such an occurrence. He also stated that his review of Ford engineering documents supported this theory. Dr. Anderson, who holds a doctorate in electrical engineering, testified concerning the design of the cruise control system used in the 1991 model Aerostar and the possibility of sudden acceleration resulting from EMI.

Ford presented testimony from several experts, including Victor DeClercq ("DeClercq") and Dr. Catherine Corrigan ("Dr. Corrigan"), in its defense. DeClercq has a degree in physics and worked for many years for Ford primarily in electronics before becoming a consultant. DeClercq has testified as an expert for Ford in other litigation involving claims of sudden acceleration. DeClercq discussed the testing that Ford performed when he was supervisor of Ford's Electromagnetic Compatibility facility from 1984 to 1994, and what Ford did not test. He stated that the only way that a sudden undesired acceleration could happen would require simultaneous shorts in the solenoids in the cruise control servomechanism that would leave physical traces. DeClercq testified that no such physical evidence was found in examinations of the Eltistes' 1991 Aerostar. He discussed the 1989 NHTSA report on sudden acceleration, which was based on information supplied by Ford to NHTSA, and the 2000 ODI report, which criticized Sero's theory of electromagnetic interference with cruise control mechanisms as a cause of unwanted sudden acceleration. Dr. Corrigan, a biomechanical engineer, testified that based on the reconstruction of the May 22, 1994 accident and the injuries of the plaintiffs, that Mr. Eltiste and Mrs. Eltiste were not wearing seat belts at the time of the accident.

A large number of documents were introduced into evidence. These documents included the 1989 NHTSA report, the 2000 ODI report, studies on sudden acceleration from Canada and Japan, and numerous documents from Ford's records.

The jury returned verdicts in favor of Ford and awarded no damages to plaintiffs, and the trial court entered its judgment on April 12, 2004. Plaintiffs now appeal from that judgment.

In their first point on appeal, plaintiffs contend that the trial court erred in admitting the 2000 ODI report without first determining whether the document was reliable, thereby violating the requirements of Missouri law and the Missouri Constitution on the admission of "public records."

Ford asserts that plaintiffs failed to properly preserve this claim of error, though it does not indicate in what manner plaintiffs failed to preserve this error. Counsel for plaintiffs objected to the introduction of the 2000 ODI report in a sidebar conference in which he stated:

The McMath denial arises from litigation involving the Chapman family. The lawyer representing the plaintiffs in that case, he filed a request to the agency [NHTSA] that they reopen the investigation which I have not objected to, but I suggest for numerous reasons, hearsay, and many other reasons, this response to a petition from the lawyer involved in litigation renders this particular denial of his petition a very different kind of fish from the 1989 part which as I understand for the jury would be admissible.

So for those reasons, reliability based on hearsay, and the fact that it was done in the context of litigation, I respectfully submit they should not be allowed to read any of the contents of that particular —

In their motion for a new trial, plaintiffs asserted as grounds for their motion that the trial court committed prejudicial error in admitting the 2000 ODI report, "as it does not meet the threshold of trustworthiness to support admissibility."

Although the initial objection could have been phrased better, plaintiffs' counsel did raise a sufficient objection so as to preserve the claim of error, and the motion for a new trial included that ground, this time more clearly, albeit briefly, articulated. Plaintiffs properly preserved their first point on appeal.

Section 490.220 RSMo (2000) provides that

All records and exemplifications of office books, kept in any public office of the United States, or of a sister state, not appertaining to a court, shall be evidence in this state, if attested by the keeper of said record or books, and the seal of his office, if there be a seal.

The Missouri Supreme Court addressed this statute and the admissibility of records from NHTSA in Rodriguez v. Suzuki Motor Corp., 996 S.W.2d 47 (Mo. banc 1999), a case cited by Ford in its response to plaintiffs' objection to the introduction of the 2000 ODI report. The Missouri Supreme Court observed that section 490.220 eliminated the foundational requirements of authentication, best evidence, and hearsay for the...