Gartman ex rel. Estate of Kutait v. Ford Motor Co.

• Citation: 430 S.W.3d 218,2013 Ark. App. 665
• Decision Date: 13 November 2013
• Docket Number: No. CV–13–183.,CV–13–183.
• Parties: Michael GARTMAN and Kemal Kutait, Individually and on behalf of the Estate of Rebecca Kutait and the Wrongful Death Beneficiaries, Appellants v. FORD MOTOR CO., Appellee.
• Court: Court of Appeals of Arkansas

2013 Ark. App. 665

430 S.W.3d 218

Michael GARTMAN and Kemal Kutait, Individually and on behalf of the Estate of Rebecca Kutait and the Wrongful Death Beneficiaries, Appellants

v.FORD MOTOR CO., Appellee.

No. CV–13–183.

Court of Appeals of Arkansas.

Nov. 13, 2013.

Johnson, LLP, by: Gerald M. “Tracy” Johnson, III; SL Chapman LLC, by: Bradley M. Lakin and Robert J. Evola; and John Cole, for appellants.

Wright, Lindsey & Jennings LLP, Little Rock, by: Edwin L. Lowther, Jr., and Gary D. Marts, Jr., for appellees.

JOHN MAUZY PITTMAN, Judge.

In this products-liability case, appellants Michael Gartman and Kemal Kutait, as representative of his daughter Rebecca's estate, appeal from a jury verdict in favor of appellee Ford Motor Company. We affirm. ¹

The parties agree on the essential facts. On January 25, 2004, at approximately 3:00 a.m., Michael Gartman and his girlfriend, Rebecca Kutait, were involved in a one-vehicle accident on Interstate 30. Earlier that evening the couple had visited friends, and Michael consumed several beers. They left the gathering with Michael at the wheel of his Ford pickup. While driving on Interstate 30, Michael and Rebecca argued, and Rebecca grabbed the wheel. Michael could not control the vehicle, and it left the highway, colliding with several trees before coming to rest on its side. According to Michael, he and Rebecca did not sustain life-threatening injuries at that point, even though they were trapped in the truck. Several minutes after the crash, however, the truck caught fire. Passersby rescued Michael, who suffered serious burns. They could not save Rebecca, and she died in the fire. Michael's blood-alcohol content (BAC) after the accident measured .08.

In 2007, appellants sued appellee as the manufacturer of the truck. They claimed that Michael's injuries and Rebecca's death were caused by the truck's inability to withstand the crash without catching fire, i.e., its lack of crashworthiness. At trial, appellants offered expert testimony that the truck caught fire due to a defect in the fuel line. Appellee defended on the grounds that the truck was properly designed and that Michael was partly at fault for causing the initial crash, due to his inability to control the vehicle while intoxicated. The jury found in favor of appellee, leading to this appeal.

I. Comparative Fault

Over appellants' objections, the circuit court admitted evidence of Michael's alcohol consumption and BAC; instructed the jury that Michael's intoxication could be considered evidence of negligence; and instructed the jury on Michael's comparative fault. Appellants argue on appeal that the court's rulings were in error because any fault Michael may have borne in the initial crash was irrelevant, given the nature of their crashworthiness claim. We review the court's rulings for an abuse of discretion. Washington v. Washington, 2013 Ark. App. 54, 425 S.W.3d 858;Gross & Janes Co. v. Brooks, 2012 Ark. App. 702, 425 S.W.3d 795.

The crashworthiness doctrine recognizes that a manufacturer may be held liable for an enhanced or greater injury that occurs following an initial accident, which was brought about by some independent cause. See Bishop v. Tariq, 2011 Ark. App. 445, 384 S.W.3d 659. According to appellants, the injuries for which they sought compensation arose solely from the faulty manufacture or design of appellee's product, and not from any fault of Michael's in precipitating the crash. Consequently, they maintain, proof of Michael's alcohol consumption should not have been admitted into evidence or used as a basis for comparing fault.

We disagree with appellants' premise. Arkansas follows the majority view that a plaintiffs fault is relevant in a crashworthiness case for the purpose of apportioning the overall responsibility for damages. In Bishop v. Tariq, supra, we relied on the language of our comparative-fault statute to hold that a plaintiff's fault could be compared with a defendant's fault in a crashworthiness or enhanced-injury case. The comparative-fault statute, Arkansas Code Annotated section 16–64–122(a) (Repl.2005), provides that, in all actions for personal injuries or wrongful death in which recovery is predicated on fault, liability shall be determined by comparing the fault chargeable to a claiming party with the fault chargeable to the party from whom he seeks to recover. The statute additionally provides that “fault” shall include any act, omission, conduct, risk assumed, breach of warranty, or breach of any legal duty which is a proximate cause of any damages sustained by any party. Ark.Code Ann. § 16–64–122(c) (Repl.2005). This broad language and our holding in Tariq stand at odds with appellants' claim that a plaintiff's fault should not be compared to the defendant's in a crashworthiness case. See also Williams v. Mozark Fire Extinguisher Co., 318 Ark. 792, 888 S.W.2d 303 (1994). We further note that Arkansas recognizes that the acts or omissions of two or more persons may work together to produce damages. See Villines v. North Arkansas Regional Medical Center, 2011 Ark. App. 506, 385 S.W.3d 360; AMI Civ. 501 (2012).

Appellants contend that their case is distinguished by the fact that the truck fire did not occur until fifteen or twenty minutes after the initial crash. This time gap does not foreclose the application of comparative fault. It was for the jury to decide whether Michael's fault, if any, served as a proximate cause.²

Appellants also argue that the only actions relevant for comparing fault in a products-liability case are found in AMI Civ. 1014 (2012). Such actions include the plaintiff's misusing the product in an unforeseeable manner, using the product beyond its anticipated life, or unforeseeably altering the product. AMI Civ. 1014, however, does not purport to contain an exhaustive list of the ways in which a plaintiff may be at fault in a products-liability case. The Notes on Use accompanying AMI Civ. 1014 state that it may be used in conjunction with AMI Civ. 2101 (2012), the general comparative-fault instruction.

Finally, appellants argue that, even if evidence of Michael's alcohol consumption was relevant, it was more prejudicial than probative because the trial took place in a dry county, and because there is a “negative attitude in this country today toward drinking and driving.” Rule 403 of the Arkansas Rules of Evidence (2013) provides that relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. We conclude that no unfair prejudice occurred. A dim view of drinking and driving is to be expected no matter what the circumstances or jurisdiction.

Based on the foregoing, we see no abuse of discretion in the circuit court's allowing evidence of Michael's alcohol consumption and instructing the jury on comparative fault.

II. Expert Testimony

The circuit court excluded the testimony of appellants' expert, Dr. William Hickerson, who opined that Michael's BAC reading was unreliable due to his burn injuries. Appellants argue that Dr. Hickerson's testimony should have been admitted as reliable scientific evidence. Again, we apply the abuse-of-discretion standard of review. Derry Berrigan & Co. v. KBS Leasing, Inc., 2013 Ark. App. 196, 2013 WL 1228035.

Michael's BAC reading was taken by the Arkansas State Police approximately two hours after the accident and registered .08. Later, Michael was treated for his injuries by Dr. Hickerson, a certified plastic surgeon and general surgeon. During Dr. Hickerson's pretrial deposition, he stated that he was taught during his residency that a burn victim's blood-alcohol level could be falsely elevated due to metabolic acidosis. He testified that he worked with burn victims at a trauma center in Memphis and that he had admitted many patients with blood-alcohol content. He stated, however, that he was not “boarded” in toxicology, pathology, or hematology; that he had not published articles on toxicology or how burns affect BAC readings; and that he did not consider himself an expert in blood-alcohol concentration. He further testified that the only basis for his opinion that Michael's BAC reading could be considered unreliable due to burn injuries came from courses he took during his residency many years earlier.

The circuit court ruled that Dr. Hickerson's opinion did not meet the test of admissibility set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). In Daubert, the United States Supreme Court held that a trial court must make a preliminary assessment of whether the reasoning or methodology underlying expert testimony is valid and whether the reasoning or methodology has been properly applied to the facts of the case. Richardson v. Union Pacific Railroad Co., 2011 Ark. App. 562, 386 S.W.3d 77. The objective of a Daubert inquiry is to ensure the relevance and reliability of expert testimony and to make certain that the expert, whether basing testimony on professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field. Bayer CropScience LP v....