General Motors Corp. v. Johnston

• Decision Date: 24 January 1992
• Citation: 592 So.2d 1054
• Parties: Prod.Liab.Rep. (CCH) P 13,074 GENERAL MOTORS CORPORATION v. Helen Lewis JOHNSTON, as personal representative of the Estate of Barton Lewis Griffin, deceased, and S. Ford Lewis. 1900589.
• Court: Alabama Supreme Court

Page 1054

592 So.2d 1054

Prod.Liab.Rep. (CCH) P 13,074

GENERAL MOTORS CORPORATION v. Helen Lewis JOHNSTON, as personal representative of the Estate of Barton Lewis Griffin, deceased, and S. Ford Lewis.

1900589.

Supreme Court of Alabama.

Jan. 24, 1992.

Terrence E. Haggerty of Bowman and Brooke, Detroit, Mich., and H.E. Nix, Jr. of Nix & Holtsford, Montgomery, for appellant.

William L. Utsey of Utsey, McPhearson & Christopher, Butler, and Woodford W. Dinning, Jr. of Lloyd, Dinning, Boggs & Dinning, Demopolis, and Jere L. Beasley, Frank M. Wilson and Kenneth J. Mendelsohn of Beasley, Wilson, Allen, Mendelsohn & Jemison, P.C., Montgomery, for appellees.

KENNEDY, Justice.

The defendant appeals from a judgment based on a jury verdict in favor of the plaintiffs, Helen Lewis Johnston and Ford Lewis.

The issues presented in this case are: (1) whether the trial court erred in admitting certain expert testimony; (2) whether the trial court erred in admitting reports of engine stallings; (3) whether the trial court erred in failing to grant a new trial based on alleged misconduct of the plaintiffs' attorney; and (4) whether the jury's award of $15,000,000 in punitive damages was excessive.

On August 12, 1987, Ford Lewis was driving a 1988, 2500 series Chevrolet pickup truck. Lewis had purchased the pickup truck two days earlier and had driven it less than 200 miles. His seven-year-old grandson, Barton (Bart) Griffin, was riding in the passenger seat. Lewis stated that as he attempted to drive through the intersection of Highway 10 and Highway 43 in Marengo County, the engine of his truck stalled. A tractor-trailer truck, driving through the intersection, struck the pickup truck, injuring Lewis and killing Bart.

Lewis, along with Bart's mother, sued General Motors Corporation ("GM"), alleging that the pickup truck was "defective" under the Alabama Extended Manufacturer's Liability Doctrine (AEMLD). The plaintiffs also sued the driver of the truck and his employer, alleging negligence and wantonness.

As to their AEMLD claim, the plaintiffs asserted that there was a defect in the fuel delivery system and that that defect caused the engine to stall. Specifically, they asserted that a programmable read only memory chip ("PROM") was defective.

The PROM is located in the TBI/ECM system of this model truck. "TBI" stands for throttle body injection. "ECM" stands for electronic control module. The TBI/ECM system controls several engine functions, including the fuel delivery system. When a driver depresses the accelerator, a sensor transmits a command to the ECM. The memory programmed in the PROM, in turn, relays the command to the engine.

A PROM is installed in various GM vehicles. GM programs each PROM for the particular model engine through calibrations. The plaintiffs claimed that the PROM and its calibrations caused the pickup truck to stall on the date of the collision.

The plaintiffs averred that GM knew of stalling problems in the model truck in question and did not alert its customers. Instead, they asserted, GM issued a "silent" or "unpublished" recall whereby it informed all of its dealers to replace the PROM with a newly designed PROM if a customer complained that his engine stalled.

GM stated that no defect existed in the truck or the PROM and that, in fact, the engine was running and that Lewis negligently drove through the intersection and thereby caused the accident. GM claimed that it did not issue a silent recall, but had simply improved the PROM and had merely informed its dealers of such improvements.

At trial, Lewis testified that as he started driving through the intersection, his truck stalled. Lewis said he saw an 18-wheel, tractor-trailer truck fully loaded with logs approaching the intersection from about 700 feet away. Lewis claimed that he put the truck in "park" and tried to crank the engine, but that the engine would not start. The driver of the tractor-trailer truck testified that he blew his horn, then steered the truck into the left lane in an attempt to avoid colliding with Lewis. The tractor-trailer truck struck the pickup truck on the right side.

There were four additional witnesses to the collision, all of whom testified that the pickup truck stopped in the middle of the intersection. Each witness stated that Lewis would have had sufficient time to pass through the intersection had his pickup truck not stopped. Two of the witnesses said that it looked as though Lewis was attempting to recrank the vehicle immediately prior to the collision. The same two witnesses testified further that subsequent to the collision, in their attempts to extricate Bart from the truck, they noticed that the gear shift lever was in an upwards position. During that brief span, neither of the witnesses looked at any indicators on the dashboard.

State Trooper James Goodreau investigated the accident. He testified that the gear shift lever of the pickup truck was in the "park" position when he arrived on the scene. He stated that he could not be sure who or how many persons had had access to the pickup truck before he arrived. A Ms. Emily Goodwin, who arrived on the scene immediately after the accident, testified that the gear shift lever was up as far as it would go.

The driver of the tow truck, Neal Jackson, who towed Lewis's pickup truck away from the scene, testified that the gear of the truck was engaged and in "drive." He further said that no damage was done to the pickup truck while it was being towed.

Dr. Rudolph Limpert was called by the plaintiffs as an expert witness in mechanical engineering. GM interposed no objections as to Limpert's qualifications as an expert when he was proffered to the court.

Limpert expressed the opinion that the engine could not have been running at the time of the accident, and he based this opinion on his examination of the engine fan and shroud. He stated that the fan and shroud were only slightly damaged, indicating that the fan was not rotating at the time of the accident. In his opinion, what damage there was to the fan occurred as a result of the force of impact. Limpert testified that, in his opinion, the pickup truck transmission was in "park" at the time of the accident, based upon the condition of the drive shaft. Limpert concluded that the PROM and its calibrations were defective and were most likely the cause of the collision. GM cross-examined Limpert on his stated opinions.

After Limpert had testified and had been released as a witness, GM moved to strike Limpert's testimony. The trial court denied the motion, stating that GM had waived any objection to Limpert's testimony.

Dr. Julian Doughty, also an expert in mechanical engineering, testified for GM. He testified that the damage to the fan and shroud indicated that the engine was running at the time of the accident. He further expressed his opinion that the markings on the drive shaft indicated that the engine was running when the accident occurred.

GM called Frank Sonye to testify as to the design and development of the PROM. Sonye, an expert in computers, had worked for GM for 25 years. He stated that each PROM goes through various tests and safety checks, and that every vehicle is thoroughly tested before it is sent to a dealer. According to Sonye, upon delivery, a dealer gives each vehicle a check, which includes a visual inspection of the engine. Sonye also testified that the PROM design and development process is constant and ongoing.

The plaintiffs offered into evidence internal reports from GM concerning stalling problems in vehicles with a 5.7 liter engine like the one in Lewis' pickup truck. GM has a technical assistance network (TAN), through which mechanics and service managers from various dealerships may contact GM concerning problems. GM also has a customer assistance network (CAS), through which customers can report problems directly to GM. The plaintiffs offered 268 of these TAN and CAS reports. GM objected to 251 of them on the ground that they were not "substantially similar" to the alleged problem in the instant case in that a majority of the reports did not mention a PROM. The trial court overruled the objection, and the reports were admitted.

The plaintiffs also proffered a technical service bulletin that had been sent to all GM dealers; it stated that some of the engines in the 1987-1988 model trucks could experience certain problems that could be repaired by replacing the PROM. Those problems included "rolling, hunting, or surging idles." They offered a second technical service bulletin, which sought to eliminate rolling, surging, or rough idles, hesitation during engine warm up, and long crank times.

At the conclusion of the trial, the jury found for the plaintiffs and against GM. The jury awarded Lewis $75,000 in compensatory damages and awarded Bart's mother $15,000,000 in punitive damages under the Alabama Wrongful Death Statute. The driver of the tractor-trailer truck had been earlier dismissed, and the jury found no liability against the driver's employer.

GM filed a motion for a new trial, a JNOV, or a remittitur. The trial court denied the motion and entered an order in compliance with Hammond v. City of Gadsden, 493 So.2d 1374 (Ala.1986), and its progeny.

I. Did the trial court err in admitting the expert testimony of Dr. Rudoph Limpert?

Limpert's expertise was in the field of mechanical engineering. It was apparent that Limpert was to testify as to his opinion on why the engine stalled.

GM made no objection to Limpert's qualifications as an expert prior to his testimony. While making a motion for a directed verdict at the close of the plaintiffs' evidence, GM moved to strike Limpert's testimony based on a lack of expertise. At that point, Limpert had already been dismissed as a witness in the case.

Clearly, GM should have objected to Limpert's qualifications as an expert before the close of the plaintiffs' evidence. GM should have objected prior to...