McCathern v. Toyota Motor Corp.

• Decision Date: 28 April 1999
• Citation: 160 Or. App. 201,985 P.2d 804
• Parties: Linda McCATHERN, Respondent, v. TOYOTA MOTOR CORPORATION, a foreign corporation; Toyota Motor Sales, Inc., a foreign corporation; and Broadway Toyota, an Oregon corporation, Appellants, and Takata Corporation, a foreign corporation, Defendant.
• Court: Oregon Court of Appeals

985 P.2d 804

160 Or. App. 201

Linda McCATHERN, Respondent, v. TOYOTA MOTOR CORPORATION, a foreign corporation; Toyota Motor Sales, Inc., a foreign corporation; and Broadway Toyota, an Oregon corporation, Appellants, and Takata Corporation, a foreign corporation, Defendant.

(9601-00689; CA A98578)

Court of Appeals of Oregon.

Argued and Submitted September 10, 1998.

Decided April 28, 1999.

Malcolm E. Wheeler, Denver, Colorado, argued the cause for appellants. With him on the opening brief were Julie K. Bolt, Jonathan Hoffman and Martin, Bischoff, Templeton, Langslet & Hoffman LLP, Portland, Oregon, Wheeler Trigg & Kennedy, P.C., Denver, Colorado, Richard Shapiro and Snell & Wilmer, Phoenix, Arizona, and Richard A. Derevan and Snell & Wilmer, Irvine, California. On the reply brief were Jonathan M. Hoffman, Julie K. Bolt and Martin, Bischoff, Templeton, Langslet & Hoffman LLP.

Kathryn H. Clarke, Portland, argued the cause for respondent. With her on the brief were Maureen Leonard, Jeffrey P. Foote, and Jana Toran.

Before De MUNIZ, Presiding Judge, and HASELTON and LINDER, Judges.

HASELTON, J.

Plaintiff Linda McCathern brought this product liability action against Toyota Motor Corporation, Toyota Motor Sales, U.S.A., Inc., and Broadway Toyota (collectively "Toyota") for damages arising from severe permanent injuries she sustained when the 1994 Toyota 4Runner in which she was a passenger rolled over at high speed. At trial, the jury returned a verdict for plaintiff, and Toyota appeals. We conclude that the trial court did not err in denying Toyota's motions for directed verdict and judgment notwithstanding the verdict (JNOV), because plaintiff submitted evidence from which a jury could conclude that the 1994 4Runner failed to meet reasonable consumer expectations, and was, therefore, defective. We further conclude that the trial court did not abuse its discretion in admitting plaintiff's evidence of "other similar incidents" or in denying defendant's motion for a new trial. Accordingly, we affirm.

Because the jury returned a verdict in plaintiff's favor, we view the evidence and all inferences that may reasonably be drawn from the evidence in the light most favorable to plaintiff. Greist v. Phillips, 322 Or. 281, 285, 906 P.2d 789 (1995). In 1994, plaintiff's cousin, Elizabeth Sanders, leased a 1994 Toyota 4Runner sport utility vehicle.¹ On May 28, 1995, plaintiff and her young daughter and Sanders and her young daughter, were returning to Portland from Idaho in Sanders's 1994 4Runner. At about 9:30 that evening, the 4Runner was traveling at approximately 55 miles per hour on a straight, flat portion of Washington State Highway 395, a two-lane highway with wide, paved shoulders. Sanders was driving, plaintiff was in the front passenger seat, and the two children were in the back seat. Sanders saw oncoming headlights in her lane of travel, and to avoid a collision with the oncoming vehicle, sharply steered her vehicle to the right on to the paved shoulder. To prevent the 4Runner from going off the pavement on the right side of the highway, Sanders countersteered quickly to the left, sending the vehicle across both her lane of travel and the northbound lane. She then countersteered again, back to the right, to avoid leaving the road on the left side. After that third steering input, the 4Runner began to roll. It rolled over twice and then came to rest fully upright in the center of the highway, without ever having left the pavement. In the course of the rollover, the roof over the front passenger seat was crushed. Plaintiff suffered a broken neck and was permanently paralyzed from the neck down. Sanders and the children suffered no permanent physical injuries. In January 1996, plaintiff brought this action against Toyota, pleading claims of negligence and strict products liability. Plaintiff alleged, inter alia, that the 1994 4Runner was "dangerously defective and unreasonably dangerous in that it was unstable and prone to rollover" as designed and sold.

The case was tried to a jury over three weeks in March and April of 1997. Plaintiff offered detailed and often technical testimony from a variety of expert witnesses, including Thomas Fries, a mechanical engineer specializing in accident reconstruction, Leon Robertson, a statistician specializing in injury statistics, and Simon Tamny, another accident reconstruction expert. Fries presented his analysis of the mechanics of the rollover of Sanders' 4Runner and testified that, in his opinion, the sole cause of the rollover was "the geometry of the vehicle"—there was no evidence of braking, off-pavement travel, or a "rim trip."² Robertson presented evidence regarding the correlation between the height of a vehicle's center of gravity and its rollover resistance. Tamny testified that, in his opinion, the 1994 4Runner was unreasonably dangerous because tire friction forces generated by hard steering could—by themselves—cause the vehicle to roll over instead of sliding to a stop. Tamny also testified that the design of the 1996 4Runner—which was lighter, had a wider track width,³ and a lower center of gravity than the 1994 4Runner—achieved a substantially increased degree of stability. Toyota conceded that the design changes made in the 1996 model could have been incorporated into the design of the 1994 4Runner.

Plaintiff also presented evidence that Toyota marketed the 1994 4Runner for highway driving and commuting, as well as for off-road use. Specifically, plaintiff submitted examples of Toyota's print and television advertising of the 1994 4Runner, which contained specific representations of 4Runners engaged in sharp steering maneuvers.

At the close of plaintiff's case, Toyota moved for a directed verdict, asserting that plaintiff had failed to prove her negligence claim and had failed to prove a design defect and causation in her strict liability claim. The court granted a directed verdict for Toyota on the negligence claim, rejected the second argument, and deferred ruling on the third. At the close of all evidence, Toyota unsuccessfully renewed its motion for a directed verdict, arguing again that plaintiff had failed to prove design defect and causation. The jury returned a verdict for plaintiff on the strict liability claim, concluding that the design of the 1994 4Runner was defective, and awarded plaintiff $5,400,000 in economic damages and $2,250,000 in noneconomic damages. Toyota subsequently objected to the proposed money judgment on the ground that ORS 18.560 "capped" plaintiff's noneconomic damages at $500,000. The trial court denied that objection and entered a judgment for plaintiff for $7,645,000, plus interest and costs.⁴

Toyota timely filed a motion for JNOV, or, in the alternative, a new trial. In support of its motion for JNOV, Toyota reiterated its arguments that plaintiff failed to prove design defect—and particularly that the design of the 1996 4Runner represented a safer reasonable alternative design—or that the design of the 1994 4Runner caused her injuries. In support of its motion for a new trial, Toyota pointed, inter alia, to newly discovered evidence of two rollovers involving 1996-model 4Runners. The trial court did not rule on Toyota's motion, and it was denied by operation of law. ORCP 63 D.

On appeal, Toyota raises four assignments of error. First, Toyota argues that the trial court erred in denying Toyota's motions for directed verdict and JNOV because plaintiff's evidence of product defect was insufficient to support the verdict. Second, Toyota argues that the trial court abused its discretion in denying its motion for a new trial because Toyota's "newly discovered evidence" of the two rollovers involving 1996-model 4Runners would so materially undermine plaintiff's theory that the 1996 4Runner represented a safer practicable alternative design as to change the result if a new trial were granted. Third, Toyota argues that the trial court abused its discretion in allowing plaintiff to admit allegedly irrelevant and unfounded expert testimony regarding 15 "similar" rollover accidents, some of which, Toyota contends, was inadmissible hearsay. Fourth, Toyota argues that the trial court erred by not limiting plaintiff's noneconomic damages to $500,000, as required by ORS 18.560(1).

Toyota acknowledges that, for purposes of our review, its fourth assignment of error as to the statutory damage cap is controlled by our decision in Lakin v. Senco Products, Inc., 144 Or.App. 52, 925 P.2d 107 (1996), rev. allowed 325 Or. 438, 939 P.2d 621 (1997). Toyota raises that issue here to preserve it, pending the Supreme Court's decision in Lakin. Accordingly, and without further discussion, we affirm the trial court's refusal to "cap" plaintiff's recovery of noneconomic damages. We proceed to Toyota's other assignments of error.

I. THE "CONSUMER EXPECTATION" TEST: CONTENT AND OPERATION

The disposition of each of Toyota's assignments ultimately depends on a correct understanding of the controlling standard of strict products liability under Oregon law: the "consumer expectation" test. No Oregon appellate decision in more than 30 years has addressed the meaning and operation of that test. Accordingly, to focus the present dispute—and before considering the particulars of Toyota's arguments—we explore the development, content, and application of the consumer expectation test.

A. The Test Generally

Oregon is one of roughly a dozen jurisdictions that adhere to the consumer expectation test as the standard for determining strict products liability in manufacturing and design defect cases.⁵ Although, as explained below, the precise formulation of that test may differ from state to state, in each instance the standard was derived from Comment i of section 402A of the Restatement (Second) of Torts (1965), which describes the meaning of an "unreasonably dangerous" product:

"The article sold must be dangerous to an extent beyond that which

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