Nease v. Ford Motor Co.

• Citation: 848 F.3d 219
• Decision Date: 01 February 2017
• Docket Number: No. 15-1950,15-1950
• Parties: Howard E. NEASE; Nancy Nease, Plaintiffs–Appellees, v. FORD MOTOR COMPANY, a Delaware Corporation, Defendant–Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

848 F.3d 219

Howard E. NEASE; Nancy Nease, Plaintiffs–Appellees,

v.FORD MOTOR COMPANY, a Delaware Corporation, Defendant–Appellant.

No. 15-1950

United States Court of Appeals, Fourth Circuit.

Argued: September 21, 2016

Decided: February 1, 2017

ARGUED: Jonathan D. Hacker, O'MELVENY & MYERS LLP, Washington, D.C., for Appellant. Larry Lee Javins, II, BAILEY, JAVINS & CARTER, L.C., Charleston, West Virginia, for Appellees. ON BRIEF: Andrew B. Cooke, FLAHERTY, SENSABAUGH & BONASSO, PLLC, Charleston, West Virginia; Bradley N. Garcia, O'MELVENY & MYERS LLP, Washington, D.C., for Appellant. Tony L. O'Dell, TIANO O'DELL, PLLC, Charleston, West Virginia, for Appellees.

Before MOTZ, TRAXLER, and AGEE, Circuit Judges.

TRAXLER, Circuit Judge:

Howard and Nancy Nease commenced this product liability action against Ford Motor Company, alleging that Howard suffered serious injuries in an accident caused by a design defect in the speed control system of his 2001 Ford Ranger pickup truck. Over Ford's objection, the Neases offered the expert testimony of Samuel Sero that the speed control cable in the 2001 Ranger is susceptible to getting stuck or "bound" while the throttle to which it is linked is in the open position, thus preventing the driver from slowing down the vehicle. The Neases claim that this is precisely what happened while Howard was driving his 2001 Ranger. A West Virginia jury awarded the Neases $3,012,828.35 in damages. Ford made several post-trial motions, including a motion for judgment as a matter of law under Rule 50(b) of the Federal Rules of Civil Procedure. In its motion, Ford renewed its pre-trial argument that Sero's testimony was inadmissible under Daubert v. Merrell Dow Pharmaceuticals, Inc. , 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and should have been excluded. In the alternative, Ford sought a new trial on the basis that the district court erroneously instructed the jury on strict liability under West Virginia law and erroneously admitted evidence of prior incidents involving Ford vehicles.

The district court denied Ford's post-trial motions. Ford now appeals. For the reasons that follow, we conclude that Sero's testimony should not have been admitted. And, without any other expert testimony to establish that the 2001 Ford Ranger was defectively designed and that there were safer alternative designs available that a reasonably prudent manufacturer would have adopted, the Neases cannot prove their case under West Virginia law. Accordingly, we must reverse and remand for entry of judgment in Ford's favor.

I.

On November 20, 2012, Howard was driving his recently purchased, used 2001 Ford Ranger pickup truck on U.S. Route 60 in St. Albans, West Virginia. According to Howard, he was traveling 45-50 mph when he discovered his vehicle would not slow down when he released the accelerator pedal. He tried to slow the pickup truck by applying the brakes, but to no avail. In order to avoid running into pedestrians or other cars, Howard turned the Ranger off the road, drove over a curb, and crashed into a brick car wash building. For about 25-30 seconds after the pickup truck hit the brick wall, the tires reportedly continued spinning until the engine shut down. Howard's Ranger had approximately 116,000 miles on it at the time of the accident, and there is no indication in the record that the vehicle had ever manifested problems with the accelerator, cruise control or throttle. The Neases thereafter filed this action against Ford Motor Company, alleging that Ford defectively designed the accelerator pedal-to-throttle assembly of the 2001 Ranger pickup truck. The complaint asserted causes of action for strict liability, negligence, and breach of warranty.

A.

The general design and function of the throttle control system in the 2001 Ford Ranger is typical of any modern passenger vehicle. The driver controls engine speed by depressing the accelerator pedal, which is linked to the throttle, which, in turn, regulates the amount of air flowing into the engine. When the accelerator pedal is depressed, the throttle opens and engine speed increases; when the accelerator pedal is released, the throttle closes, airflow is restricted and engine speed decreases.

In the 2001 Ford Ranger, the accelerator pedal is linked to the throttle body by a steel accelerator cable. The accelerator cable is attached to a lever on the throttle body; the lever operates the throttle valve and the throttle valve controls the engine's air intake. As "the accelerator pedal is depressed, the accelerator cable [which is attached to the throttle lever] is pulled to open the throttle [valve] and increase the engine speed." J.A. 83. In essence, the accelerator pedal, the accelerator cable and the throttle lever form a pulley system that opens the throttle. As a safety feature, the throttle lever is equipped with return springs that exert 7.2 pounds of continuous force to pull the throttle closed when the driver takes his foot off of the accelerator.

In addition to the accelerator pedal-to-throttle assembly, another means by which the driver of a 2001 Ranger can open the throttle is the cruise control system. This system is operated by a "speed control actuator and [a] speed control cable." J.A. 85. The cruise control system incorporates an electric motor that operates a steel cable—the speed control cable—to open and close the throttle. The speed control cable and the accelerator cable are attached to the same throttle lever/pulley system that operates the throttle valve. When the speed control actuator receives input from the cruise control switch on the steering column, the motor manipulates the speed control cable to pull the throttle lever independently of the main accelerator cable.

The throttle control design takes into account that both cables are attached to the same throttle lever/pulley-system. In order to prevent significant stress to the speed control cable that could potentially occur when the cruise control is not engaged and the throttle lever is being controlled by the accelerator pedal and cable, Ford incorporated a " ‘lost motion’ configuration" for the speed control cable assembly. J.A. 85. In this design, the steel speed control cable runs from the motor in the speed control actuator through a plastic "guide tube," and is attached to the throttle lever by a plastic "connector." Id. The connector and the guide tube move with the throttle lever when it is being operated by the accelerator cable. The speed control cable itself stays stationary while the guide tube moves up and down the cable and in and out of a stationary plastic casing tube, called a "casing cap," which is attached to the motor. Id. The gap between the moving guide tube and the stationary casing cap is approximately 0.04 inches.

B.

Following the accident, plaintiffs hired Samuel Sero, an electrical engineer, to examine the engine and the throttle assembly in Howard's 2001 Ford Ranger. Sero approached his examination with the view that in failure-to-decelerate cases, the issue is often one of "mechanical binding" and that a post-accident investigation should "look at the accelerator cable, [to] see if there's anything on it that bound up and prevented it from closing the throttle when the accelerator pedal was released, looking for ... any kind of grime, grit, or anything that could bind that one." J.A. 613.¹ Sero indicated that a post-accident investigation should therefore look for the presence of contaminants and particles that could lodge between the speed control guide tube and the casing cap and create a "wedging effect." J.A. 628. Sero used a borescope to inspect the speed control assembly.

A borescope is essentially a fiber-optic tube equipped with a light that a mechanic or an engineer can insert into an inaccessible area of the engine and view a given component without having to disassemble the engine. When he examined the speed control cable in the Neases' pickup, Sero did not find any materials wedged between the guide tube and the cap. In fact, he noted that the speed control cable moved freely. Nevertheless, Sero concluded that contaminants had entered and built up in the casing cap over time, causing the guide tube to stick and, therefore, the throttle plate to remain open. Sero testified that he was able to identify "a lot of contaminant ... deposited" in the casing cap, J.A. 636, and "along the guide tube," J.A. 631. Sero also noticed "gouges or striations" on the guide tube. J.A. 645. From this observation, Sero believed that there had been "a rough, abrasive material between the ... interior of the [casing] cap tube and the surface of the guide tube," indicative of binding. J.A. 645. Sero surmised that sufficient debris had accumulated to create the "wedging effect" needed to keep the throttle open after the accelerator pedal was released. However, Sero had no way of knowing precisely how much contaminant was present in the casing cap or whether it was enough to lodge in the 0.04 inch-gap between the cap and the guide tube such that the throttle would be stuck in the open position. The borescope is simply a viewing tool; it does not afford a means for determining the amount of the contaminant that can be seen with the device.

To bolster his opinion, Sero pointed to a document Ford had prepared in 1987 identifying potential risks Ford engineers should consider addressing in the design of particular vehicles in the future. This document is called a Failure Mode and Effects Analysis ("FMEA"). According to Ford's "Potential Failure Mode and Effects Analysis" Handbook, "[a]n FMEA can be described as a systemized group of activities intended to: (a) recognize and evaluate the potential failure of a product/process and its effects, (b) identify actions which could eliminate or reduce the chance of the potential failure occurring, and (c) document the process." J.A. 968. The primary purposes of an FMEA include "identify[ing] potential failure modes and rat[...