Lally v. Volkswagen Aktiengesellschaft, 96-P-737

• Decision Date: 18 August 1998
• Docket Number: No. 96-P-737,96-P-737
• Citation: 45 Mass.App.Ct. 317,698 N.E.2d 28
• Parties: , Prod.Liab.Rep. (CCH) P 15,487 George T. LALLY, Third, & others 1 v. VOLKSWAGEN AKTIENGESELLSCHAFT & others. 2
• Court: Appeals Court of Massachusetts

Page 28

698 N.E.2d 28

45 Mass.App.Ct. 317, Prod.Liab.Rep. (CCH) P 15,487

George T. LALLY, Third, & others ¹ v. VOLKSWAGEN AKTIENGESELLSCHAFT & others. ² No. 96-P-737.

Appeals Court of Massachusetts Hampden.

Argued Dec. 4, 1997.

Decided Aug. 18, 1998.

Louis Kerlinsky, for plaintiffs.

Regina E. Roman, Boston, for Volkswagon Aktiengesellschaft & another.

Frank Yesu, Longmeadow, for Lipman Motors, Inc., was present but did not argue.

Before WARNER, C.J., and PERRETTA and BECK, JJ.

WARNER, Chief Justice.

This product liability case involves claims for personal injuries suffered by Joyce Lally and her six month old son, George T. Lally, Third (George), when the 1971 Volkswagen Karmann Ghia automobile Joyce was driving was involved in a collision with a 1974 Oldsmobile Cutlass. Joyce; George; Joyce's husband and George's father George T. Lally, Jr. (George Jr.); and Ernest Lally (George's brother), filed a lawsuit against Volkswagen of America, Inc., Volkswagen Aktiengesellschaft (collectively referred to as Volkswagen), and Lipman Motors, Inc. (Lipman) alleging, among other things, breach of warranty, negligence, deceit, and violation of G.L. c. 93A, in connection with the design and sale of the Karmann Ghia. The case was a so-called "crashworthiness" case, in which the plaintiffs alleged that, as a result of certain design defects in the vehicle Joyce and George were more seriously injured in the accident than they otherwise would have been. ³ , ⁴ Specifically, the plaintiffs claimed that as the result of a defective design, the glove box door in the Karmann Ghia opened in the course of the accident, that George moved forward into the open door, and that the impact with the door's narrow edge caused his spinal injuries. They also alleged that as a result of the accident, Joyce's head struck the A-pillar, the metal pillar between the front windshield and the side window of the vehicle, and that her brain injury was caused by, and made worse as a result of, the lack of padding on the A-pillar.

After a Superior Court jury trial that lasted nearly five weeks, the jury returned verdicts in favor of the defendants on Joyce's claims of breach of warranty, ⁵ finding, in answer to a special question, that any defect in the vehicle was not a substantial contributing factor to her injuries. ⁶ The jury found in favor of George on his claims of negligence and breach of warranty and awarded total damages of $750,000 to him. The jury further awarded damages of $650,000 to George Jr. for medical and related expenses, and $35,000 for loss of consortium. Loss of consortium damages in the amount of $80,000 were also awarded to Joyce.

On June 22, 1990, the trial judge heard arguments on a number of posttrial motions and on the plaintiffs' c. 93A claims. ⁷ He subsequently granted Volkswagen's motion for judgment notwithstanding the verdict and conditionally granted a new trial pursuant to Mass.R.Civ.P. 50(c), 365 Mass. 815 (1974), on George's claims, on the ground that there was insufficient evidence to support a finding that George's injuries were caused by any alleged defect in the Karmann Ghia. ⁸ The judge also issued findings of fact and rulings of law on the c. 93A claims, and ordered judgment in favor of the defendants on those claims. The plaintiffs' motions for additur and for a new trial on the issue of damages were subsequently denied, and judgment entered in favor of the defendants on all claims. Although the plaintiffs timely filed notices of appeal, the record was not fully assembled until five years after judgment. ⁹

The plaintiffs raise a multitude of issues on appeal, including the propriety of the judge's decision to dismiss their deceit claims; to grant Volkswagen's motions for judgment notwithstanding the verdict; and to conditionally grant Volkswagen's motions for a new trial. They also challenge the instructions on causation and the admission of several kinds of visual evidence, as well as the admission of evidence regarding Joyce's preaccident history of substance abuse. Finally, they argue that the judge's ruling in favor of the defendants on the c. 93A claims and the posttrial order requiring them to return to the defendants $5,900 previously placed in escrow, should be vacated. We affirm.

Facts. On June 10, 1984, at approximately 9:00 P.M., Joyce was driving a 1971 Karmann Ghia ¹⁰ in West Springfield. Her husband, George Jr., and the couple's six month old child, George, were passengers. Although the vehicle was equipped with seat belts, neither adult wore one. George, however, was strapped into a car seat in the rear of the vehicle. Shortly before the vehicle entered the intersection of Route 20 and Sibley Avenue, George Jr. removed the baby from his car seat and brought him into the front, where he was held "chest to chest." As the Karmann Ghia crossed the west-bound lane of Route 20 before turning into the east-bound lane, it was struck on the driver's side by a 1974 Oldsmobile Cutlass.

As a result of the collision, George sustained a distraction flexion injury to his spinal cord which rendered him a paraplegic. Joyce also sustained severe bodily injuries, including a fractured pelvis and severe head injuries resulting in permanent brain damage.

1. Motion for judgment notwithstanding the verdict. The plaintiffs maintain that the judge erred in granting the defendants' motion for judgment notwithstanding the verdict with respect to George's claims. In reviewing the judge's decision, the standard is "whether 'anywhere in the evidence, from whatever source derived, any combination of circumstances could be found from which a reasonable inference could be drawn in favor of the plaintiff[s].' Poirier v. Plymouth, 374 Mass. 206, 212, 372 N.E.2d 212 (1978)." Miles v. Edward O. Tabor, M.D., Inc., 387 Mass. 783, 786, 443 N.E.2d 1302 (1982), quoting from Abraham v. Woburn, 383 Mass. 724, 727-728, 421 N.E.2d 1206 (1981). This determination must be made "without weighing the credibility of the witnesses or otherwise considering the weight of the evidence." O'Shaughnessy v. Besse, 7 Mass.App.Ct. 727, 728, 389 N.E.2d 1049 (1979), quoting from Simblest v. Maynard, 427 F.2d 1, 4 (2d Cir.1970). Rather, judgment notwithstanding the verdict should be granted only when "there can be but one conclusion as to the verdict that reasonable men could have reached." Ibid. We agree with the judge's conclusion that in this case, because "there was a glaring and fatal deficiency on the issue of causation [regarding] George's injuries, ... the only verdict which could reasonably have been reached [was] a defendants' verdict." Accordingly, the motion was properly granted.

Because this was a "crashworthiness" case, "the plaintiffs needed to prove (1) that crashes such as the one [in which the Karmann Ghia was involved] were reasonably foreseeable to the manufacturer; (2) that the design of the [vehicle's glove box] made it unreasonably dangerous for use in the circumstances of such a crash; and (3) that because of the design, [George] was injured more seriously than he would have been had the car been reasonably designed." Caron v. General Motors Corp., 37 Mass.App.Ct. 744, 753, 643 N.E.2d 471 (1994). See part 2, infra. The plaintiffs, however, failed to present evidence at trial sufficient to persuade a reasonable jury that George's paraplegia was caused by striking his back on the open glove box door. Indeed, all the medical testimony, including that of the plaintiffs' own expert, tended to refute the plaintiffs' theory of causation. ¹¹

Although called by the plaintiffs as their sole medical expert on George's claim, Dr. Peter Goldman, the neurosurgeon who operated on George immediately after the accident, was never directly asked by plaintiffs' counsel whether George's injuries were consistent with impact with a glove box door, or with an impact of any kind. Indeed, Dr. Goldman's testimony was completely at odds with the plaintiffs' theory of the case and actually supported the defendants' position. Dr. Goldman explained that George sustained a distraction flexion injury, generally caused by extreme stretching and bending as a result of rapid deceleration. He stated that "[d]istraction flexion injury of the lumbar spine is a fracture that [is] ordinarily see[n] in people who have a rapid deceleration, such as a race car hitting a wall, the driver wearing only a lap belt so that the pelvis is anchored to the seat, but the upper trunk is thrown forward and flexed." He likened the effect of such an injury on the structures within the spinal canal to taking "a salami or sausage and ... ben[ding] it forward and pull[ing] it apart." Moreover, on cross-examination, Dr. Goldman agreed that "there was nothing medically in the baby's condition ... which indicated ... that this spinal injury was caused by impact with a hard, narrow, rigid object such as the glove box door." Indeed, he testified that there were "things which were inconsistent with this being an injury caused by forceful impact on the spine, [including the absence of bruises or soft tissue injuries to George's back and fractures of the spinous process, the outer vertebral body closest to the back]."

The testimony of the defendants' medical expert further impugned the plaintiffs' theory of causation, and was, to a great extent, uncontradicted. Dr. Robert Mendelsohn, a neurosurgeon with over thirty-five years of experience, testified that not only were George's injuries the result of distraction and flexion, along with rotation, but that they were not caused by striking the glove box door. Dr. Mendelsohn stated unequivocally that "no narrow object hit [George's] body," and that if any such object had come in contact with George's back, he would have experienced extension, or bending backward, the very opposite of the flexion injury he sustained. Indeed, Dr. Mendelsohn opined that such an impact would not only have produced noticeable lacerations on...