Federico v. Ford Motor Co.

• Decision Date: 28 September 2006
• Docket Number: No. 05-P-960.,05-P-960.
• Citation: 854 N.E.2d 448,67 Mass. App. Ct. 454
• Parties: Donna FEDERICO, administratrix,<SMALL><SUP>1</SUP></SMALL> v. FORD MOTOR COMPANY.
• Court: Appeals Court of Massachusetts

Page 448

854 N.E.2d 448

67 Mass. App. Ct. 454

Donna FEDERICO, administratrix,¹ v. FORD MOTOR COMPANY.

No. 05-P-960.

Appeals Court of Massachusetts, Middlesex.

Argued April 5, 2006.

Decided September 28, 2006.

COPYRIGHT MATERIAL OMITTED

Thomas J. Murray, Worcester (Marylin A. Beck, Dedham, with him) for the plaintiff.

John A.K. Grunert, Boston, for the defendant.

Present: ARMSTRONG, C.J., GELINAS, & COWIN, JJ.

COWIN, J.

The plaintiff, Donna Federico, as administratrix of the estate of Frank Federico, appeals from a final judgment on a jury verdict in favor of the defendant, Ford Motor Company (Ford). The action arose from an accident that occurred on June 15, 2000, in the parking lot of Stop & Shop Supermarket Company (Stop & Shop) in Medford in which a 1989 Mercury Sable automobile manufactured by Ford and operated by Nora T. Lombardi accelerated at a high rate of speed, hit a traffic barrier, jumped the curb, and struck and killed the plaintiff's decedent, Frank Federico. The plaintiff asserted claims against Lombardi for negligent operation of the motor vehicle; against Stop & Shop for negligent failure to install adequate barriers to protect patrons from erratic drivers; and against Ford for negligence and breach of warranty in the vehicle's manufacture.

The plaintiff settled with Lombardi and Stop & Shop before trial. After a trial in the Superior Court, the jury returned a verdict in favor of Ford. The plaintiff filed a timely notice of appeal from the ensuing final judgment, asserting that (1) the trial judge erroneously excluded certain expert testimony; (2) the trial judge erred in permitting the defendant to read extensively from government reports when cross-examining the plaintiff's expert witness and during subsequent direct examination of its own witnesses, and compounded the error by restricting redirect examination of the plaintiff's expert; and (3) the judge erred in permitting Ford to offer in evidence the plaintiff's answers to interrogatories propounded by then defendants Lombardi and Stop & Shop (before they settled with the plaintiff). The plaintiff appeals also from an order awarding Ford costs of $14,930.85, largely for deposition expenses. We affirm.

1. Exclusion of expert testimony. The plaintiff proceeded against Ford on a products liability theory, specifically asserting that a design defect in the Mercury Sable brought about sudden unintentional acceleration and that the malfunction, not operator error, caused the accident. In support thereof, the plaintiff proffered the testimony of Samuel J. Sero, an electronics expert, who was prepared to state that Ford's design of the cruise control in the vehicle's electronic throttle system made it both possible and foreseeable that transient electronic signals or electromagnetic interference would cause the cruise control to signal the throttle to open to a near wide-open level despite the absence of any equivalent pressure by the operator on the accelerator.

Ford's motion in limine to exclude Sero's testimony concerning this theory was allowed on the ground that the plaintiff had not established that Sero's theory — that transient electronic signals could have affected the cruise control and caused the vehicle suddenly to accelerate — was based on a reliable scientific foundation. See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 588-589, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993); Commonwealth v. Lanigan, 419 Mass. 15, 25, 641 N.E.2d 1342 (1994). In making his decision, the judge referred to, and adopted the reasoning of, Jarvis v. Ford Motor Co., 69 F.Supp.2d 582 (S.D.N.Y. 1999) (Jarvis), an unpublished decision by a judge of the United States District Court for the Southern District of New York,² wherein similar testimony by Sero regarding transient electronic signals was excluded as unreliable. The plaintiff now claims that the judge's reliance on the Jarvis decision was error in that the judge failed to exercise independent discretion in determining whether Sero's methodology was sufficiently reliable.³

It is unnecessary to repeat the reasoning supporting the presently accepted criteria regarding the admission of scientific opinion testimony and the judge's "gatekeeper role" in the process. See Commonwealth v. Lanigan, 419 Mass. at 26, 641 N.E.2d 1342. "The ultimate test . . . is the reliability of the theory or process underlying the expert's testimony." Id. at 24, 641 N.E.2d 1342. While general acceptance by the scientific community, see Frye v. United States, 293 F. 1013, 1014 (D.C.Cir.1923), continues to be a relevant factor, it is no longer the sole test. "[A] proponent of scientific opinion evidence may demonstrate the reliability or validity of the underlying scientific theory or process by some other means, that is, without establishing general acceptance." Commonwealth v. Lanigan, supra at 26, 641 N.E.2d 1342. Whether a given methodology can be tested, and whether there has been an opportunity for peer review or publication, have been identified as pertinent considerations. Id. at 25, 641 N.E.2d 1342, citing Daubert v. Merrell Dow Pharmaceuticals, Inc., supra at 593-594, 113 S.Ct. 2786. The judge's findings on the motion must be supported by the evidence, see Commonwealth v. Patterson, 445 Mass. 626, 639, 840 N.E.2d 12 (2005). The judge's ultimate determination is reviewed for abuse of discretion, see Canavan's Case, 432 Mass. 304, 311, 733 N.E.2d 1042 (2000) (supplanting Commonwealth v. Vao Sok, 425 Mass. 787, 797, 683 N.E.2d 671 (1997), after the Supreme Court rejected de novo review of such determinations in General Elec. Co. v. Joiner, 522 U.S. 136, 141-143, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997)).

There is no basis on the record for setting aside the judge's decision. While he obviously considered, and ultimately agreed with, the reasoning in the Jarvis decision, it is clear that he deliberated on the issue and exercised independent judgment. He read the transcript of Sero's deposition, considered the parties' evidence and arguments, and engaged in discussion with counsel. The plaintiff has made no showing that the judge bound himself by the Jarvis decision without acting on his own view of the evidence pertaining to reliability.

As for the merits, the judge's assessment was warranted, and his exclusion of the proffered testimony was not an abuse of discretion. The plaintiff provided no evidence that Sero's theories had been accepted by the relevant scientific community; indeed, statements from other studies in evidence specifically rejected Sero's conclusions. There was evidence that Sero had not tested his theory successfully, and he acknowledged that it would be difficult, if not impossible, to do so. He testified at his deposition that he had been unable to cause a vehicle to accelerate spontaneously through the introduction of transient electronic signals. Compare Rotman v. National R.R. Passenger Corp., 41 Mass. App.Ct. 317, 320, 669 N.E.2d 1090 (1996). Nor was there evidence that the theory had been published or was a subject of peer review. See Commonwealth v. Lanigan, 419 Mass. at 25, 641 N.E.2d 1342. On this record, and particularly given the absence of any physical verification of the posited phenomenon, the judge could permissibly determine that the evidence of scientific reliability of Sero's hypothesis did not satisfy the Lanigan criteria.⁴

2. Use of learned treatises. The plaintiff argues that the judge erred in permitting the defendant to use portions of learned treatises (in this case, reports of government studies) in connection with the cross-examination of her expert, William D. Berg, and the direct examination of its own experts. The treatises consisted of the report of a 1989 National Highway Traffic Safety Administration (NHTSA) study entitled "Examination of Sudden Acceleration," as well as similar documents prepared by agencies of the Canadian and Japanese governments. The plaintiff also complains that her attempt on redirect examination to have her expert rebut the government material was unfairly limited, and that it was error to permit defense counsel to refer to such material as substantive evidence in his closing.

In Commonwealth v. Sneed, 413 Mass. 387, 395-396, 597 N.E.2d 1346 (1992), the Supreme Judicial Court adopted Proposed Mass.R.Evid. 803(18) governing the admission of learned treatises in certain circumstances.⁵ The material is initially admissible on cross-examination only after the judge decides that the treatise is "a reliable authority." Id. at 396, 597 N.E.2d 1346. The judge must also "determine the relevance and materiality of the statement and should consider carefully any claimed unfairness or confusion that admission of the statement may create." Ibid. The statement may be read into evidence, and the witness should be given an opportunity to assess the statement and comment on it during either cross-examination or redirect examination. Ibid. See the Note of the Advisory Committee to Study the Rules of Evidence on Proposed Mass.R.Evid. 803(18) (July, 1980).⁶ Once the statement has been admitted, it is admitted for its substance. Commonwealth v. Sneed, 413 Mass. at 395-396, 597 N.E.2d 1346 (rule 803[18] accords substantive value to treatises admitted in accordance with its terms).

We discern no error in the manner in which the judge applied these principles. It is unclear at best that the plaintiff objected to much of the defendant's use of the government reports. If the plaintiff did not object, any claimed error was waived. See Wynn & Wynn, P.C. v. Massachusetts Commn. Against Discrimination, 431 Mass. 655, 674, 729 N.E.2d 1068 (2000). Nor did the plaintiff request that the judge exercise his discretion to limit the length of the excerpts. Passing the question of waiver, the reports, permissibly found by the judge to be reliable and relevant to the plaintiff's claim that the accident was caused by a sudden acceleration brought about by a...