Herrington v. Ford Motor Co.

• Decision Date: 12 May 2010
• Docket Number: No. CA 08–624.,CA 08–624.
• Citation: 376 S.W.3d 476,2010 Ark. App. 407
• Parties: James HERRINGTON; Sharon Whorton, Administratrix of the Estate of Bridgette Millsap, Deceased; Bonnie Fox; Tracy Dillard, Guardian and Next Friend of Casey Wright, A Minor; Elizabeth Baker, Individually and as Next Friend of Katlyn Baker, A Minor; Tammy French, Guardian and Next Friend of Kyla Sexson, A Minor; First Security Bancorp, Administrator of the Estate of Anne Cripps, Deceased; Tamhra Shawver, Guardian and Next Friend of Fallon Jade Shawver; Mike Walker, Individually and as Guardian of Ryan Walker, Appellants v. FORD MOTOR COMPANY, INC., Appellee.
• Court: Arkansas Court of Appeals

2010 Ark. App. 407
376 S.W.3d 476

James HERRINGTON; Sharon Whorton, Administratrix of the Estate of Bridgette Millsap, Deceased; Bonnie Fox; Tracy Dillard, Guardian and Next Friend of Casey Wright, A Minor; Elizabeth Baker, Individually and as Next Friend of Katlyn Baker, A Minor; Tammy French, Guardian and Next Friend of Kyla Sexson, A Minor; First Security Bancorp, Administrator of the Estate of Anne Cripps, Deceased; Tamhra Shawver, Guardian and Next Friend of Fallon Jade Shawver; Mike Walker, Individually and as Guardian of Ryan Walker, Appellants
v.
FORD MOTOR COMPANY, INC., Appellee.

No. CA 08–624.

Court of Appeals of Arkansas.

May 12, 2010.

[376 S.W.3d 478]

Phillip J. Duncan, James Henry Bartolomei III, Duncan Firm, P.A., Little Rock, AR, Brain G. Brooks, Attorney at Law, PLLC, Greenbrier, AR, for appellant.

Edwin L. Lowther, Jr., Wright, Lindsey & Jennings LLP, Little Rock, AR, Robert W. Powell, Allyson A. Miller, Dickinson Wright PLLC, Detroit, MI, for appellee.

JOHN MAUZY PITTMAN, Judge.

[Ark. App. 1]This appeal arises from a lawsuit against appellee Ford Motor Co. over the handling, stability, and crashworthiness of a 1987 van that rolled over on a Kansas highway in 2003. The accident killed two persons and injured nine. The injured parties (or their guardians) and the administrators of the two decedents' estates are the appellants herein, and they sued Ford [Ark. App. 2]in 2004 on theories of products liability, negligence, failure to warn, and breach of warranty. The circuit court bifurcated the liability and damage issues, and Ford won the liability phase after a lengthy jury trial. Appellants moved for a new trial, which the circuit court denied, and this appeal followed. Appellants argue that the circuit court erred in 1) seating biased jurors; 2) excluding certain evidence during appellants' cross-examination of Ford's expert witness; and 3) instructing the jury with improper verdict interrogatories. We find no merit in these arguments and affirm the denial of the new trial.¹

I. Background facts

Because appellants do not argue a lack of substantial evidence to support the jury's verdict, we offer only a brief summary of the facts. On March 15, 2003, members of the First Baptist Church in Gentry, Arkansas, were en route to Colorado for a ski trip. Nine passengers occupied a 1987 Ford van driven by Vester Cripps, and church member Bridgette Millsap occupied a vehicle following the van. At 6:24 a.m., Cripps lost control of the van on Interstate 70 in Kansas, and it rolled over, ejecting Cripps, his wife Anne, and two other passengers. Anne Cripps was killed and the other ejected passengers sustained serious injuries. The passengers who were not ejected also sustained injuries. Bridgette Millsap stopped to render aid at the accident scene and

[376 S.W.3d 479]

died when she was struck by another vehicle.

[Ark. App. 3]On August 5, 2004, appellants sued Ford, alleging that the injuries and deaths were caused by the van's defective stability-and-handling system and its faulty occupant-protection design.² The case was tried first on the question of Ford's liability, and the jury found that Ford was not at fault. Appellants moved unsuccessfully for a new trial, then filed this appeal.

During the trial, issues arose over jury selection, the admissibility of another manufacturer's roll-over testing procedure, and the court's choice of verdict interrogatories. Those issues will be discussed in greater detail under the ensuing headings.

II. Jury selection

Following the exercise of peremptory strikes, the court seated a jury that included Jean Wyant, Russell Hulse, Cheryl Fiser, and Matt Foggiano. Appellants argue that these jurors should have been stricken for cause because they expressed a predisposition to hold appellants to a higher burden of proof. They cite Ark.Code Ann. § 16–31–102(b) (Supp.2009) for the proposition that no person shall serve as a juror who has formed or expressed an opinion concerning the matter in controversy that may influence his judgment, or who is biased or prejudiced for or against any party.

Persons comprising the venire are presumed to be unbiased and qualified to serve, and the burden is on the party challenging a juror to prove actual bias. Berry v. St. Paul Fire & Marine Insurance Co., 328 Ark. 553, 944 S.W.2d 838 (1997). The issue of a juror's [Ark. App. 4]qualifications lies within the sound discretion of the trial court and we will not reverse absent an abuse of discretion. Id.

During voir dire, appellants' attorney asked the potential jurors as a group, “Is there anybody on our jury panel that believes there ought to be caps on damages of some kind, limits on damages?” Venireman Gerald Baxter responded, “You can't put a price on humans,” and expressed his disagreement with large damage awards in cases where accidents occurred through “nobody's fault.” Mr. Baxter concluded that “there's a lot of lawyers, and they've got to make a living, and that's my theory.” Appellants' attorney asked Mr. Baxter if his feelings were so strong that appellants “would have a bit of a burden to overcome those feelings in getting you to award large damages in a death case?” Baxter responded, “Yes.”

The following then occurred:

Counsel: [S]o I have a greater burden with you than I might a person that didn't have those feelings. Is that a fair statement?

Baxter: Yes.

Counsel: Okay. Who agrees with that statement?

(Several venirepersons raise their hands.)

Counsel: Here's what I need you to do. Those of you who raised your hand[s] and agree and feel as strongly as he does about it, tell me your names please.

(Fifteen venirepersons, including Wyant, Hulse, Fiser, and Foggiano, give their names.)

Counsel: Of those of you who've expressed that belief as a strong belief, how many of you would put a greater burden on me in this case to get damages as a result? Could I see a show of hands?

[376 S.W.3d 480]

[Ark. App. 5](Two venirepersons, Clark Bailey and Joe DeSoto, respond and give their names.)

....

Counsel: What I'm saying is, if this is the scale, and I'm going to ask you to award what I believe a life is worth, which is very large money, [how many of you] would tilt the scale toward Ford as you sit here today. Anybody have that feeling?

(No hands are raised.)

Thereafter, appellants' attorney again questioned Mr. Baxter, who eventually stated that he would not place a higher burden on appellants because their lawsuit was “not frivolous.” Counsel also made individual inquiries to more than a dozen other venirepersons regarding subjects that included damage caps, tort reform, and frivolous lawsuits. An in-camera hearing followed, in which counsel challenged “those three jurors” who said that they would “put a greater burden on me in a large personal injury case.” Another of appellants' attorneys provided the judge with the names of all fifteen venirepersons who had raised their hands during the initial questioning of Mr. Baxter. However, the court remembered that “there were only two or three that said they would hold you to a higher burden.” The court denied the challenge for cause at that point but stated that it would speak to the venire.

Proceedings resumed in open court and the trial judge told the potential jurors that he would instruct the jury on the burden of proof. The court reminded them that two lives had been lost and that the plaintiffs were seeking “significant damages.” The court specifically asked Mr. Baxter if he was “convinced and confident” that he could follow the court's instructions on burden of proof. Mr. Baxter said that he could. The court then addressed [Ark. App. 6]those on the venire who had “raised their hands about a higher burden.” The court asked if they could follow the court's instructions and not hold the plaintiffs to a higher burden of proof, specifically stating, “I need to know if there is anybody that can't follow those instructions?” No one responded. Appellants' counsel then thanked the court and continued to question venirepersons both individually and as a group.

When the jury was selected, it did not include Baxter, Bailey, and DeSoto—the three men who clearly expressed the possibility of holding...