General Motors Corp. v. Moseley

• Decision Date: 13 June 1994
• Docket Number: A94A0827,Nos. A94A0826,s. A94A0826
• Court: Georgia Court of Appeals
• Parties: , Prod.Liab.Rep. (CCH) P 13,996 GENERAL MOTORS CORPORATION v. MOSELEY et al. MOSELEY et al. v. GENERAL MOTORS CORPORATION.

Page 302

447 S.E.2d 302

213 Ga.App. 875, Prod.Liab.Rep. (CCH) P 13,996

GENERAL MOTORS CORPORATION v. MOSELEY et al.

MOSELEY et al. v. GENERAL MOTORS CORPORATION.

Nos. A94A0826, A94A0827.

Court of Appeals of Georgia.

June 13, 1994.

Reconsiderations Denied July 14, 1994.

King & Spalding, Byron Attridge, Chilton D. Varner, Philip E. Holladay, Jr., Atlanta, for appellant.

Butler, Wooten, Overby & Cheeley, James E. Butler, Jr., Robert D. Cheeley, Patrick A. Dawson, Albert M. Pearson III, Atlanta, Andersen, Davidson & Tate, Gerald Davidson, Jr., Lawrenceville, Michael J. Bowers, Atty. Gen., Michael E. Hobbs, Deputy Atty. Gen., for appellees.

Alston & Bird, James C. Grant, Robert D. McCallum, Jr., G. Conley Ingram, Atlanta, amici curiae.

BLACKBURN, Judge.

On October 21, 1989, as Shannon Moseley drove his 1985 GMC pickup truck through an intersection, he was struck on the driver's side by another pickup truck driven by David Ruprecht. The side saddle gas fuel tank on Moseley's truck ruptured, and burst into flames shortly after the collision. Moseley was killed in the incident, and the medical examiner who performed an autopsy concluded that he died from thermal burns and smoke inhalation following the collision.

Thomas and Elaine Moseley, as administrators of Moseley's estate and as parents and sole survivors, commenced this action against General Motors Corporation (GM). Following trial in the matter, the jury awarded the Moseleys $4,241,611.84 against GM and Ruprecht on their wrongful death claim, and $1.00 on a claim for pain and suffering. The jury also assessed against GM $101,000,000 in punitive damages.

Subsequently, the State of Georgia sought 75 percent of the punitive damages award pursuant to OCGA § 51-12-5.1(e)(2), which apportions that percentage of such an award to the State of Georgia and the remaining 25 percent to the plaintiffs in a product liability action. The trial court disallowed that apportionment, finding the statute unconstitutional. On appeal, however, the Supreme Court upheld the constitutionality of OCGA § 51-12-5.1(e)(2), and reversed. State of Ga. v. Moseley, 263 Ga. 680, 436 S.E.2d 632 (1993).

GM filed a motion for new trial based on newly discovered evidence, which the trial court denied, and this appeal followed. The Moseleys, dissatisfied with the $1.00 award for pain and suffering and the trial court's denial of their request for prejudgment interest, also filed a motion for new trial which the trial court denied. The Moseleys have filed a cross-appeal from that denial of their motion for new trial.

The parties originally filed their respective appeals with the Supreme Court, on the ground that the case involved constitutional questions regarding the matter of punitive damages. However, after noting that the issues in these cases involve only the application of settled constitutional principles, and do not require the construction of either the Georgia or the United States Constitution, or a determination of the constitutionality of a law, the Supreme Court transferred the appeal and cross-appeal to this Court.

The State of Georgia has participated as an appellee in the appeal. Numerous entities also have filed amicus curiae briefs, including the United States Business and Industrial Council, the Product Liability Advisory Council, Inc., The Georgia Press Association, Lawyer for Civil Justice, the Business Roundtable, the Chamber of Commerce of the United States, and the National Association of Manufacturers. The record in the appeal and cross-appeal is immense, consisting of over 10,000 pages of record and exhibits and over 4,000 pages of trial transcript.

Case No. A94A0826

1. GM filed a motion in limine to exclude evidence of other cases involving GM pickup trucks and fuel-fed fires. During a pretrial hearing on that motion, the trial court instructed: "There's going to have to be a showing [of substantial similarity] made before any mention of another case is made to this jury. That case is going to have to be run past the court and a determination made of the substantial similarity." GM contends that the jury's verdict in this case was poisoned by the plaintiffs' counsel's frequent and inflammatory reference to other lawsuits over post-collision fuel-fed fires without first making a showing of substantial similarity to the incident in question, in contravention of that pretrial ruling.

In product liability actions, evidence of other incidents involving the product is admissible, and relevant to the issues of notice of a defect and punitive damages, provided there is a showing of substantial similarity. Mack Trucks v. Conkle, 263 Ga. 539, 436 S.E.2d 635 (1993). "Without a showing of substantial similarity, the evidence is irrelevant as a matter of law...." Carlton Co. v. Poss, 124 Ga.App. 154, 155, 183 S.E.2d 231 (1971). See also Hayes v. Gary Burnett Trucking, 203 Ga.App. 693(1), 417 S.E.2d 676 (1992).

In the instant case, counsel for the plaintiffs actually presented no evidence of similar incidents, but repeatedly referred to 120 other lawsuits (and occasionally an estimated 240 deaths) during opening statement, examination and cross-examination of witnesses, and closing argument. The record reveals that on at least 16 occasions, plaintiffs' counsel made such references, without ever attempting to make the required showing of similarity. On some of those occasions, GM raised no objection; several times, GM objected, but the trial court instructed plaintiffs' counsel to continue; and on four occasions, including motions for mistrial asserted during opening statement and following closing argument, the trial court overruled GM's objections. On one occasion, the trial court actually sustained GM's objection and disallowed the witness's answer.

The Moseleys contend that under these circumstances, GM failed to preserve this issue for review. However, where the trial court's ruling on a motion in limine is violated, further objection at trial is unnecessary to preserve the matter for appellate review. Scott v. Chapman, 203 Ga.App. 58, 59, 416 S.E.2d 111 (1992). "The purpose in filing a motion in limine to suppress evidence or to instruct opposing counsel not to offer it is to prevent the asking of prejudicial questions and the making of prejudicial statements in the presence of the jury with respect to matters which have no proper bearing on the issues in the case or on the rights of the parties to the suit. It is the prejudicial effect of the questions asked or statements made in connection with the offer of the evidence, not the prejudicial effect of the evidence itself, which the motion in limine is intended to reach." (Citations and punctuation omitted.) Reno v. Reno, 249 Ga. 855, 856, 295 S.E.2d 94 (1982).

In the instant case, the trial court emphasized that there was to be no "unbridled offloading" of other cases and that there would have to be a showing of substantial similarity, outside the presence of the jury, before any other case was mentioned. Plaintiffs' counsel's repeated breach of that ruling can only be regarded as deliberate, and considering the inflammatory nature of the references to a multitude of other lawsuits and deaths, we are unable to say as a matter of law that the frequent violation of the trial court's ruling did not influence the jury's verdict. Scott v. Chapman, supra; Seay v. Urban Med. Hosp., 172 Ga.App. 344, 323 S.E.2d 190 (1984).

The plaintiffs suggest that GM's concern over this issue during the trial and on appeal is a "red herring." Relying upon Skil Corp. v. Lugsdin, 168 Ga.App. 754, 309 S.E.2d 921 (1983), they argue that a showing of substantial similarity is a foundational requirement only when evidence of other incidents is offered for the purpose of proving the existence of a defect, as opposed to showing notice of a defect.

The plaintiffs' argument begs the question, notice of what defect? If the relative defects are not similar, how can one be notice of the other? Regardless of whether the proper standard is "substantial similarity" or mere "similarity," the plaintiffs failed to make either showing. The plaintiffs' reliance upon Skil Corp. is misplaced, as that case addressed the relevance and permissible use of evidence of prior incidents, and not the foundational requirements for admission of that type of evidence. The similarity of the various incidents was conceded by Skil Corp. as is implicit in the opinion and nothing therein eliminates the requirements of a showing of similarity where such is in dispute. As stated above, the Supreme Court's holding in Mack Trucks v. Conkle, supra, makes it clear that before such evidence is admissible for whatever appropriate use, there must be a showing of substantial similarity to the incident at issue. The plaintiffs' failure to do so and the repeated breach of the trial court's ruling on the motion in limine in this case constitute reversible error.

GM also moved in limine to exclude evidence of discovery disputes in this or other lawsuits, and during the hearing on the motion, counsel for the plaintiffs assured the trial court that they would not introduce any such evidence. Notwithstanding that representation, several times during the trial, the plaintiffs' counsel inquired or remarked about GM's attempt to hide information regarding problems with the full-size pickup truck. Upon direct examination of a former GM engineer who left GM's employment in 1989, counsel elicited testimony about GM's practice of giving elusive answers to interrogatories, "woodshedding" engineers who testified, and incomplete searches of engineering files in response to discovery requests. Inasmuch as evidence of or reference to any other lawsuits was improper, it follows that this evidence of discovery disputes likewise should have been excluded.

2. Ronald Elwell, who was employed by GM as a safety engineer for 28 years, testified on behalf of the plaintiffs, regarding the...