General Motors Corp. v. Jackson, 90-CA-0824

Decision Date03 December 1992
Docket NumberNo. 90-CA-0824,90-CA-0824
Citation636 So.2d 310
PartiesGENERAL MOTORS CORPORATION v. Linda JACKSON, Individually and Next Friend and Natural Guardian of Her Minor Daughter Amanda Jackson and Terry Jackson.
CourtMississippi Supreme Court

W. Swan Yerger, Gene D. Berry, Heidelberg & Woodliff, Jackson, John R. Reese, David M. Heilborn, McCutchen Doyle Brown & Enersen, San Francisco, CA, Chilton D. Varner, Atlanta, GA, for appellant.

David D. O'Donnell, S. Duke Goza, H. Scot Spragins, Benjamin H. Sanders, Hickman Goza & Gore, Oxford, S.T. Rayburn, Mitchell McNutt Threadgill Smith & Sams, David G. Hill, Maurie L. White, Craig Hill White & Minyard, Oxford, J. Max Kilpatrick, Philadelphia, for appellee.

Before HAWKINS, P.J., and SULLIVAN and McRAE, JJ.

Affirmed.

En Banc.

ON PETITION FOR REHEARING

McRAE, Justice, for the Court:

On petition for rehearing, we reconsider General Motors Corporation's appeal from a jury finding that the fracture of a defective rear axle in a 1984 GMC Jimmy was the proximate cause of serious and permanent injuries suffered by Linda Jackson and her daughter, Amanda, in a December 14, 1984, single-vehicle accident. Terry Jackson further sustained loss of companionship with his wife and daughter. Following a ten-day trial in the Leake County Circuit Court, the jury awarded the Jacksons $7.15 million in compensatory damages. On December 1, 1992, a three-judge panel of this Court heard oral arguments on the case. Finding that the manufacturer's arguments were without merit and presented no novel questions of law, we affirmed the decision per curiam. General Motors filed its petition for rehearing in January, 1993. The corporation raised many of the same assignments of error cited in its original appeal and requested that we issue a written opinion. Pursuant to Miss.Sup.Ct.Rule 35, this Court is required to publish a written opinion when to do so will add to the value of our jurisprudence. When this Court originally reviewed this case, we found that it presented no novel or distinctive issues of law or fact. In such cases, we long have held that we are not obligated to publish a written opinion. Morea v. State, 329 So.2d 527, 527-528 (Miss.1976); Duncan v. Perkins, 192 So.2d 386 (Miss.1966); Batson v. Draughon, 11 So.2d 203 (Miss.1942); Yazoo & Mississippi Valley Railroad Co. v. James, 108 Miss. 852, 67 So. 484 (1914).

After a careful reconsideration of the record, we deny General Motors' petition for rehearing. 1 We do, however, take this opportunity to discuss whether evidence obtained in contravention of M.R.C.P. 26(b)(4)(B) by deposing an expert witness, designated and later dismissed by one party, is admissible at trial. We further discuss whether the trial judge properly excluded the evidence under M.R.E. 403 and ultimately, whether the parties received a fair trial.

I.

On December 14, 1984, Linda Jackson and her six-week-old daughter, Amanda, were injured in a one car accident in Leake County, Mississippi. Linda was driving the family's 2.8 liter V-6 GMC Jimmy 4X4, which was designed and manufactured by General Motors Corporation in September, 1983. The Jacksons contend that the crash was caused by the fracture of a defective left rear axle which caused her to lose control of the vehicle; General Motors, on the other hand, asserts that the axle broke on impact.

At the time of the accident, Linda was travelling at a speed of approximately fifty to sixty miles per hour. She testified that she felt a bump or jarring in the left rear end of the vehicle. She glanced at Amanda, who was secured in her car seat on the passenger side of the vehicle, to see if she had been disturbed. Within a few seconds, the Jimmy veered to the left, out of control. The vehicle flipped three times, coming to rest near a pond. Its left rear wheel was found some twelve to fourteen feet away. At the accident scene, Linda, in great pain and near death, described the bump to witnesses as a "sensation on the left side of my vehicle like you had run off the road," and stated that she no longer had any control over her vehicle.

II.

The left rear axle of the Jackson's vehicle fractured at the flange end, where the wheel is attached to the axle shaft. The damaged axle is distinguished by a white circle painted around the flange. This indicates that this particular axle shaft initially failed to meet General Motors' specifications and was put through the induction hardening process a second time or "retoccoed."

The axle was designed by General Motors and manufactured at its Saginaw-Buffalo plant in Buffalo, New York. Raw unmachined shafts made of SAE 1050 modified steel were purchased from the Saginaw-Tonawanda Forge Plant. At the General Motors plant, the parts were partially machined, induction hardened, machine finished and put into the rear axle assembly. Manufacture of each axle costs approximately fourteen dollars.

At the Saginaw-Buffalo Plant, the raw axle shaft is put through a two-part heat induction process to make it hard on the outside but flexible. First the shafts are heated in the tocco unit and then, in the quench process, sprayed with water to harden the steel. Inside the tocco unit, the axle shaft is heated to a temperature of approximately 1750 degrees Fahrenheit. However, the unit is not equipped with gauges or other systems for monitoring the temperature of either the heating unit or the quench water. Whether the axle shaft has reached the proper temperature and hardness is determined largely by appearance.

After the shafts have been through the tocco unit, random samples from each work station are tested by an eddy current machine to determine whether the case depth specification has been met. Samples are also given a "file test" to make sure that the quench water has not become overheated. Any shafts which fail the eddy current test are retoccoed, that is, run through the heat induction hardening process again. General Motors maintains that the retocco process brings the shafts up to its case depth and hardness specifications.

After the tocco process and inspections, the axle shafts are placed in a tempering furnace to relieve quench stress. Again, the shafts are subjected at random to a series of inspections. They are ultrasound tested for internal defects such as chevrons or cracks. General Motors' witnesses testified that all axle shafts are so tested. However, the plaintiff's witness, the Saginaw-Buffalo plant lab supervisor at the time the Jacksons' axle shaft was manufactured, testified that in 1983, the retoccoed axles were not ultrasound tested because they had a 100% failure rate since the retocco process changes the nature of the steel. Further, evidence was presented that ultrasonic testing begins at the button end of the axle, but does not extend to the flange end where the Jacksons' axle fractured.

III.

As a result of the accident, Amanda suffered profound brain damage. At the age of five, test results indicated that her I.Q. was below 35, approximating the mental age of a twenty-two month old. A hydrocephalic condition which developed several days after the accident rendered her permanently shunt-dependent, requiring the maintenance of a lumbar peritoneal shunt to relieve the pressure on her brain and dispose of excess spinal fluid. Constant medication is required to control seizure activity. As a result of damage to the occipital lobe of her brain, Amanda also suffers visual, speech and motor control impairments.

Linda sustained multiple injuries, most notably, severe hip and pelvic damage, rendering her incapable of sustaining a pregnancy to term. Ultimately, it was necessary to perform a tubal ligation. Further, there is evidence that Linda also sustained closed brain injuries and that she suffers from severe psychological problems as result of the accident. These injuries, as well as the burden of caring for Amanda, has resulted in a serious loss of companionship and conjugal rights to Linda's husband, Terry.

IV.

The Jacksons filed a complaint against General Motors, a Delaware corporation, and Grenada Sales Company, Inc., a Mississippi corporation, in the Leake County Circuit Court on November 8, 1985. They alleged that General Motors and Grenada Sales were strictly liable on the theory of products liability, and that the defendants breached express and implied warranties of merchantability and fitness. Seeking both compensatory and punitive damages, they further charged that General Motors was negligent, reckless and wanton in the manufacture, tempering and testing of the rear axle of the vehicle.

After the defendants' unsuccessful attempt to remove the case to federal court, there ensued four years of discovery. The parties focused on developing expert opinions in support of their conflicting theories of axle failure: the Jacksons' assertion that the accident was caused by a stress fracture in the rear axle and General Motors' argument that the impact of the accident caused the axle to fracture.

The pretrial battle of the experts appeared to reach a crescendo in 1989, when John Marcosky, an expert in the field of accident reconstruction retained by the Jacksons, communicated to their attorneys that he believed that the axle did not fracture prior to the accident. The attorneys had responded through interrogatories that Marcosky was expected to testify that the crash was caused by a defective rear axle. Much later in the discovery process, Marcosky presented an opinion similar to that espoused by General Motors' experts, adding that he believed the axle broke in mid-air during the rollover. The attorneys filed supplemental responses withdrawing Marcosky as a potential expert, and withdrew as counsel for the Jacksons.

At trial, General Motors' two experts in the fields of accident reconstruction and...

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