Ford Motor Co. v. Massey, 92-1153

• Decision Date: 01 June 1993
• Docket Number: No. 92-1153,92-1153
• Citation: 313 Ark. 345,855 S.W.2d 897
• Parties: , Prod.Liab.Rep. (CCH) P 13,613 FORD MOTOR COMPANY and Quality Ford, Inc., Appellants, v. Dean MASSEY, Appellee.
• Court: Arkansas Supreme Court

Page 897

855 S.W.2d 897

313 Ark. 345, Prod.Liab.Rep. (CCH) P 13,613

FORD MOTOR COMPANY and Quality Ford, Inc., Appellants, v. Dean MASSEY, Appellee.

No. 92-1153.

Supreme Court of Arkansas.

June 1, 1993.

Baxter, Wallace, Jensen & McCallister, Benton, Brent Baber, Little Rock, for appellants.

Baker & McKenzie, Chicago, IL, Wright, Lindsey & Jennings, Little Rock, for appellee.

BROWN, Justice.

Two issues are raised by the appellants, Ford Motor Company and Quality Ford, Inc., in this appeal: 1) whether the trial judge erred in refusing to grant a judgment notwithstanding the verdict due to the absence of a reasonable basis for the expert's opinion presented on behalf of the appellee, Dean Massey; and 2) whether the trial judge further erred in refusing to strike evidence of warranty occurrences not sufficiently similar to the case at hand. We hold that the trial judge did not abuse his discretion in either instance, and we affirm the verdict and judgment. Dean Massey also cross-appeals on several issues which are to be entertained only in the event that we reverse the judgment. Because we affirm the judgment, we do not reach the issues on cross appeal.

On August 28, 1990, Dean Massey and his wife, Connie Massey, were gathering hickory in a wooded area near their Saline County home to use in a barbecue. Dean backed up the couple's 1986 Ford Bronco near to some hickory saplings. He got out of his truck and walked several feet behind it in order to fasten a chain around two of the trees. Connie moved to the driver's seat and began to back the Bronco toward the trees so that Dean could attach the chain to the truck.

Dean next heard the engine rev. He looked up and saw the Bronco three feet away "coming fast" toward him. He cried out twice to his wife, but she was unable to stop the truck. Witnesses testified at trial that Dean was caught underneath the vehicle and dragged over the hickory saplings, a five-inch-thick pine tree, and thigh-high underbrush. Photos and testimony revealed a 62 foot swath cut through the woods. Dean suffered neck and back fractures, which severed his spinal cord and rendered him a quadriplegic. He admitted at trial that his recollection of the incident was sketchy.

Within a short period of time following the incident, Connie Massey gave differing statements of what happened, though by all accounts she was distraught. She told one witness that the Bronco kept going after she took her foot off the accelerator. She told a second witness that the truck ran over her husband and something was wrong with it. She related to the West Pulaski County Fire Chief that her foot got caught between the brake and gas pedal. And she told a Saline County Deputy Sheriff that her foot slipped off the brake and hit the accelerator.

On August 21, 1991, Dean and Connie Massey filed a tort action against the appellants, Ford Motor Company and Quality Ford, Inc., on the basis that the throttle cable assembly of their 1986 Ford Bronco was defective. They alleged 1) that the suppliers of the vehicle negligently failed to warn them of a defect in the product, and 2) that Ford and Quality were strictly liable for placing a defective product in the stream of commerce. Before the matter was brought to trial, Connie Massey died in an auto accident. At trial, the Saline County Circuit Court directed a verdict for Ford and Quality on the failure-to-warn claim following Massey's case but permitted the strict liability claim to go to the jury. After seven days of trial, the jury returned a $7 million verdict on the strict liability claim, with interest to accrue at 8 1/2 percent per annum. Ford and Quality then filed a motion for judgment N.O.V., raising the same issues that are the substance of this appeal. That motion was denied.

I. REASONABLE BASIS FOR EXPERT OPINION

Ford and Quality argue, as their first point for reversal, that Dean Massey's expert witness, Larry Pipes, had no reasonable basis for his opinion that Dean's injuries were caused by a defect in the 1986 Ford Bronco at the time it was originally sold. Because of that, they contend, the trial judge erred in failing to grant their motion for judgment notwithstanding the verdict.

On review of a trial judge's denial of a motion to set aside a jury verdict on liability, the question is whether the verdict is supported by any substantial evidence. Johnson v. Clark, 309 Ark. 616, 832 S.W.2d 254 (1992); Minerva Enterprises, Inc. v. Howlett, 308 Ark. 291, 824 S.W.2d 377 (1992). The evidence most favorable to the appellee is given the benefit of all reasonably permissible inferences. Johnson v. Clark, supra; Scott v. McClain, 296 Ark. 527, 758 S.W.2d 409 (1988).

A properly qualified expert's opinion constitutes substantial evidence unless it is shown that the expert's opinion is without reasonable basis. Wallace v. Williams, 263 Ark. 702, 567 S.W.2d 111 (1978). If there is no sound and reasonable basis for expert testimony, the testimony is subject to being stricken. If, however, the cross-examination shows that the testimony has a weak or questionable basis, that goes to the weight and credibility to be given the testimony rather than to its admissibility. Ishie v. Kelley, 302 Ark. 112, 788 S.W.2d 225 (1990); Jim Paws, Inc. v. Equalization Bd. of Garland Co., 289 Ark. 113, 710 S.W.2d 197 (1986). The weight and value to be given to the testimony of expert witnesses lies within the exclusive province of the jury. B & F Engineering, Inc. v. Cotroneo, 309 Ark. 175, 830 S.W.2d 835 (1992). Whether a witness may give expert testimony rests largely within the sound discretion of the trial judge, and that determination will not be reversed absent an abuse of discretion. Montgomery v. Butler, 309 Ark. 491, 834 S.W.2d 148 (1992).

In the case before us, the expert in question, Larry Pipes, was the owner of a Missouri-based auto repair firm and an auto mechanic training and consulting firm. In Pipes's expert opinion, an "internal fault" in the throttle cable assembly caused the accident and injury to Dean Massey. In his examination of the vehicle, Pipes testified that he disconnected both ends of the throttle assembly--which consists of a stainless steel cable running through a conduit, plus springs, sockets, and fittings--and manually manipulated the steel cable through the conduit. While moving the cable back and forth, Pipes stated, he felt a "resistance to motion" which he described as a "rough spot" or a "stiff point" and which he felt was attributable to an "internal fault." He ultimately concluded that the throttle cable assembly had "hung" on the day of the accident after Connie pressed down on the accelerator which he described as "hard" or "stiff" and that the cable was defective when manufactured.

Ford and Quality urge that Pipes's opinion contained four analytical flaws. Essentially they urge 1) that Pipes's opinion was based on an irrelevant test, 2) that the cable had not stuck previously for 51,000 miles before the accident, 3) that Pipes's opinion was at odds with the testimony of the appellee himself, and 4) that it was contradictory to the testimony of the only witness with personal knowledge of the condition of the vehicle shortly after the accident--Bobby Green, a mechanic. According to the appellants, in normal operation the cable is never pushed, as described by Pipes. Instead, it is pulled toward the passenger compartment when the driver depresses the accelerator pedal and is pulled back toward the engine by three return springs when the pedal is released. Ford's own expert, Lee Carr, a mechanical engineer, likened pushing on the cable to pushing on a rope.

Although Pipes agreed, under cross-examination, that during normal operation of the vehicle, the cable is pulled rather than pushed, he asserted that the pushing test is "as valid [a test] as every Board Mechanic in America would use." Moreover, he described the operation of the steel cable and conduit in great detail and testified that he had built throttle cable assemblies himself and was quite familiar with the design and materials used in the Bronco's assembly. The steel cable, he testified, was designed to move freely within the conduit when pulled toward the passenger compartment by depressing the accelerator or returned to its original position by the springs.

It is the prerogative of the jury to believe or to disbelieve the testimony of any witness. Johnson v. Clark, supra; Hodges v. Jet Asphalt & Rock Co., 305 Ark. 466, 808 S.W.2d 775 (1991). Where there is a conflict in the testimony and evidence presented by an expert, the determination by the jury of the issues is conclusive. B & F Engineering, Inc. v. Cotroneo, supra. In this case, the essential component of Larry Pipes's testimony was that he felt a rough spot or stiff point as he manually manipulated the cable through the conduit, which he attributed to an internal fault. We cannot say that this explanation was not reasonable. The jury was entitled to believe him or not.

The appellants argue on a related point that even if the pushing test provides a reasonable basis for the expert's opinion, it still supplies no evidence that the presumed internal fault would cause the cable to catch during normal operation. This also was a credibility matter for the jury to assess. As Dean Massey noted, Pipes spoke with Connie Massey after the accident. Connie Massey had been "clear" that she was not depressing the gas pedal when the truck continued to accelerate. When an expert's testimony is based on hearsay, lack of personal knowledge does not mandate an exclusion of the opinion but instead presents a jury question concerning the weight to be attached to that opinion. Dixon v. Ledbetter, 262 Ark. 758, 561 S.W.2d 294 (1978). There was, too, additional evidence that the throttle cable had hung. A mechanic, Bobby Green, testified that the Bronco engine was revving at 2400 rpms the next day, and there was physical evidence that...