Favia v. Ford Motor Co., 1-06-2127.

• Decision Date: 31 March 2008
• Docket Number: No. 1-06-2127.,1-06-2127.
• Citation: 886 N.E.2d 1182
• Parties: Vito FAVIA, Administrator of the Estates of Nicholas Favia, Deceased, and Rosa Favia, Deceased; Caterina Favia, Special Administrator of the Estate of Patricia Favia, Deceased, and Michael Favia, Plaintiffs-Appellants, v. FORD MOTOR COMPANY, a Corporation, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

886 N.E.2d 1182

Vito FAVIA, Administrator of the Estates of Nicholas Favia, Deceased, and Rosa Favia, Deceased; Caterina Favia, Special Administrator of the Estate of Patricia Favia, Deceased, and Michael Favia, Plaintiffs-Appellants, v. FORD MOTOR COMPANY, a Corporation, Defendant-Appellee.

No. 1-06-2127.

Appellate Court of Illinois, First District, Fourth Division.

March 31, 2008.

Corboy & Demetrio, P.C., of Chicago (Michael K. Demetrio and Rene A. Torrado, Jr., of counsel), for Appellant.

Donohue Brown Mathewson & Smyth LLC, of Chicago (John A. Krivicich and Karen Kies DeGrand, of counsel), for Appellee.

Justice CAMPBELL delivered the opinion of the court:

Plaintiffs Vito Favia, as administrator of the estates of Nicholas and Rosa Favia, Caterina Favia as the special administrator of the estate of Patricia Favia, and Michael Favia, individually, appeal a jury verdict entered in favor of defendant Ford Motor Co. in a products liability action arising out of a single-vehicle rollover crash. On appeal, plaintiffs argue that the trial court erred in: (1) admitting police testimony concerning the cause of the crash; (2) admitting expert opinions based on statistical data not produced by defendant to plaintiffs; and (3) denying plaintiffs' motion to deem facts admitted. Plaintiffs also argue that the cumulative effect of the above errors denied them a fair trial.

The record on appeal discloses the following facts. At approximately 4:30 a.m. on September 18, 1994, plaintiff and his decedents were passengers in a Ford Aerostar Extended (Aerostar) driven by Sebastiano Partipilo, headed west on Interstate 74 outside Greenburg, Indiana. The vehicle was driving in the left lane through a construction zone. Orange barrels separated the left lane from the right lane, which was undergoing repaving. The right lane was approximately five inches lower than the left.

United States Army Major Jeffrey Gorres, traveling behind the Aerostar, testified at trial that while traveling at approximately 60 miles per hour, Partipilo allowed the right side tires to drop into the unpaved right lane. The Aerostar crashed into construction barrels as it went. Partipilo maneuvered the Aerostar out of the right lane, but after overcoming the drop-off, the vehicle was rocking back and forth, continuing left across the lane into the dirt median. Partipilo then steered sharply to the right, causing the Aerostar to be perpendicular to the direction of travel. Major Gorres saw sparks as the left front wheel rim contacted the pavement. The Aerostar then rolled over four or five times before coming to rest along the right side of the road.

Plaintiff and his decedents were thrown from the vehicle. Plaintiff Michael Favia suffered injuries that left him legally blind, while Patricia, Nick and Rosa Favia were killed.

Major Gorres stopped his car to check the severity of the injuries then drove to a nearby gas station to telephone for emergency assistance. Within minutes of the call, emergency assistance arrived, including firefighters and paramedics. Decatur County sheriff's deputy Robert Ewing began to investigate the crash scene and obtained assistance from Indiana State Police Sergeant Daniel Goris. The testimony of Deputy Ewing and Sgt. Goris was presented to the jury via edited copies of their videotaped evidence depositions.

Deputy Ewing had worked in law enforcement since 1991. He studied accident investigation at the Indiana Law Enforcement Academy, with an additional 40-hour reserve deputy course in accident investigation and further training at the Indiana State Police School. Deputy Ewing estimated that since 1991, he had investigated, on average, 75 crashes annually, including rollovers on the interstate with ejected passengers.

Sgt. Goris started in law enforcement as a road deputy in 1976. Goris testified that he attended 80 hours of crash investigation school and 40 hours of advanced technical crash investigation. As a technical crash investigator, he had investigated numerous crashes, including interstate rollovers with ejected passengers.

Neither Deputy Ewing nor Sgt. Goris had training in mechanical engineering, automotive engineering, vehicle dynamics or kinematics, or accident reconstruction. Working together, Deputy Ewing and Sgt. Goris made notations and took measurements with respect to the tire marks and other markings on the road, the location of the vehicle and the injured and deceased passengers. Based on these notes and measurements, Sgt. Goris prepared a diagram that was included in Deputy Ewing's report on the crash.

Deputy Ewing testified that Partipilo's over-steering was the primary cause of the crash, with the unlevel pavement being a contributing cause of the crash. Sgt. Goris opined that Partipilo over-steered, but that it was Partipilo allowing the right-side tires to drop into the unpaved right lane that caused the crash. On cross-examination, both Deputy Ewing and Sgt. Goris testified that they had no training in mechanical engineering, automotive engineering, vehicle dynamics or kinematics, or accident reconstruction. Sgt. Goris testified that he had no opinion as to whether the design of the vehicle might have been an additional cause of the accident.

Plaintiffs presented a number of expert witnesses regarding the design and safety of the Aerostar. David Bilek, who held a degree in mechanical engineering technology, testified regarding the vehicle's "static stability factor," the relationship between a vehicle's center of gravity and its track width. Bilek testified that the Aerostar Extended's length decreased its static stability factor because its width remained the same. The vehicle has a lower static stability factor than passenger cars, and it decreases when it is fully loaded. Bilek opined that Partipilo's steering was reasonably foreseeable to Ford and that the design was defective because the center of gravity was too high under such conditions. On cross-examination, Bilek testified that a vehicle is not defective simply because it has a different rollover potential from other cars, and that one cannot predict whether a vehicle will rollover based only on its static stability factor.

Milton Chase, Ph.D., testified that in the 1960s, he began work on a computer software package for modeling vehicle systems called Automated Dynamic Analysis of Mechanical Systems (ADAMS). The software applies vehicle properties and the laws of physics to create a computer model of a vehicle and perform computerized testing of its behavior. The system is used by automobile manufacturers, including Ford.

Dr. Chase testified to his development of ADAMS simulations of the Aerostar's performance of J-turns and of the rollover at issue in this case. Dr. Chase testified that the vehicle, when loaded to its gross weight limit, tipped up on its side wheels when performing J-turns. Dr. Chase opined that the Aerostar was unreasonably dangerous because it had inadequate resistance to rollover when fully loaded.

On cross-examination, Dr. Chase admitted that his computer simulation of the rollover here did not match as to where the vehicle came to rest. Dr. Chase also doubted that he had used the same ADAMS model as Ford had. Dr. Chase admitted that he acquired his tire data for the simulations from a slow-speed test while Ford used tire data collected at 55 miles per hour. Dr. Chase also admitted that a safely designed car can roll over for many reasons.

Statistician Randall Whitfield performed an analysis of data from the Fatality Analysis Reporting System (FARS) concerning crashes with one or more similarities to the crash at issue in this case. Whitfield's analysis showed that in four different categories, the Aerostar's involvement in rollover crashes was greater than that of peer vehicles, opining that this was due to the design of the vehicle. On cross-examination, Whitfield agreed that even a safely designed vehicle can roll over given some sort of tripping. He also admitted that he excluded certain vehicles lacking a driver-side airbag from his study, which tends to skew the results against vehicles which have that airbag, like the Aerostar.

Ford also presented a number of expert witnesses regarding the design and safety of the Aerostar. Donald Tandy, a former Ford employee and engineering consultant on crash investigation and vehicle development, helped design the Aerostar Extended model. Tandy's duties included validating the ADAMS model, which includes correlating the model with real world, on-track testing at various load weights on wet and dry pavement. Tandy also validated the results of Ford's ADAMS J-turn simulations.

Tandy opined that ADAMS is not an appropriate tool for reconstructing real world accidents. Tandy also opined that Dr. Chase had not adjusted his computer model to reflect the specific age and characteristics of the actual vehicle in this case. Tandy also criticized specific aspects of Dr. Chase's reconstructions. For example, Tandy noted that Dr. Chase modeled the ledge between the right and left lanes of the highway as a 45-degree ramp, rather than the vertical drop mentioned in the eyewitness testimony. Tandy testified that the computer program crashed when he modified it to reflect the vertical drop. Tandy further testified that the difference in the tire data did not correlate to the real-world performance of the Aerostar. Tandy additionally noted that the simulation did not account for differences in friction that would occur on the dirt and grass surface of the median.

Lee Carr, another former Ford employee and engineering consultant, had over 20 years of experience investigating rollover crashes. Carr opined that neither the Aerostar's steering nor stability systems caused the accident. Carr explained how the various markings and measurements noted by the police allowed him to calculate the vehicle's speed and roll sequence. Car testified that only one second elapsed...