Olson v. Ford Motor Co.

• Decision Date: 28 March 2007
• Docket Number: No. 06-1887.,06-1887.
• Citation: 481 F.3d 619
• Parties: Diana OLSON, on behalf of herself and her children as heirs at law of Richard Olson, deceased; Diana Olson, as Personal Representative of the Estate of Richard Olson, deceased, Appellants, v. FORD MOTOR COMPANY, a Corporation, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

481 F.3d 619

Diana OLSON, on behalf of herself and her children as heirs at law of Richard Olson, deceased; Diana Olson, as Personal Representative of the Estate of Richard Olson, deceased, Appellants, v. FORD MOTOR COMPANY, a Corporation, Appellee.

No. 06-1887.

United States Court of Appeals, Eighth Circuit.

Submitted: November 16, 2006.

Filed: March 28, 2007.

Kevin W. Ryan, argued, Michie & Hamlett, Charlottesville, VA, for appellants.

Wayne D. Struble, argued, Minneapolis, MN, for appellee.

Before LOKEN, Chief Judge, MELLOY, Circuit Judge, and SCHILTZ,¹ District Judge.

SCHILTZ, District Judge.

Richard Olson ("Mr. Olson") spent the evening of September 17, 2002, at the Minot Country Club in Minot, North Dakota. Over the course of the evening, Mr. Olson played golf and drank a number of alcoholic beverages. Mr. Olson left the club at about 11:00 p.m. On the drive home, Mr. Olson lost control of his vehicle, a 1998 Ford Explorer, as he was attempting to navigate a curve. His vehicle slid off the road and crashed into a tree. Mr. Olson suffered extensive injuries and died at the scene.

Appellant Diana Olson ("Ms. Olson"), Mr. Olson's wife, brought a product-liability action against appellee Ford Motor Company ("Ford"), contending that Mr. Olson lost control of his Explorer because its cruise control actuator cable was defectively designed. Ms. Olson contended that this design defect caused a sudden, unexpected acceleration that Mr. Olson was unable to overcome even with hard braking. The case was tried to a jury, which returned a verdict finding that Ford and Mr. Olson were each 50% at fault. Under North Dakota law, this finding precluded Ms. Olson from recovering any damages. See N.D. Cent.Code § 32-03.2-02 (2006).

Ms. Olson brings this appeal, contending that the district court² erred in ruling on the admissibility of evidence relating to Mr. Olson's ability to use the brakes effectively and his consumption of alcohol. Ms. Olson argues that, but for these errors, the jury would not have found that Mr. Olson's fault equaled Ford's. We affirm.

I. Exclusion of Evidence Regarding Braking

A. Background

As noted, Ms. Olson argued at trial that her husband lost control of his Explorer because a defectively designed cruise control actuator cable caused the vehicle to accelerate unexpectedly. Ms. Olson further argued that her husband tried to slow his Explorer by putting as much force as he could on the brake pedal, but that he failed to bring the vehicle under control because of a particular feature of the power-braking system. According to Ms. Olson, when an Explorer is accelerating, the power brakes are much less effective and require much more force to overcome the acceleration, especially if the driver presses the brake pedal more than once (such as by pumping the brakes). The reason for this difficulty is that stepping on the brakes depletes the braking system's vacuum booster. When the vehicle is accelerating the power braking system does not create another vacuum as efficiently as it does when the vehicle is not accelerating. With less help from the vacuum booster, the driver must rely mainly on manual force to brake the vehicle.

In support of her argument, Ms. Olson relied on two items of physical evidence. First, Ms. Olson pointed to the driver's seat in Mr. Olson's Explorer, which was bent backwards during the accident. Ms. Olson presented evidence that Mr. Olson himself bent the seat backwards while applying tremendous force to the brake pedal in a futile effort to stop his vehicle. Ford countered with evidence that the seat was bent as a result of the impact with the tree.

Second, Ms. Olson contended that the brake-pedal assembly was bent and the rubber brake-pedal pad was distorted. She argued that this was consistent with her theory that Mr. Olson put great force on the brake pedal. Ford argued in response that the brake-pedal assembly was not actually bent. Ford conceded that the rubber brake-pedal assembly was distorted, but introduced evidence that the distortion could not have been caused by Mr. Olson's foot.

In further support of her argument regarding the power-braking system, Ms. Olson presented the testimony of Dr. Rudy Limpert, a mechanical engineer with special expertise in brake design. Dr. Limpert personally tested the braking system of an exemplar Explorer while it was accelerating. Dr. Limpert testified that, at 40 miles per hour and after tapping the brake pedal several times, he was unable to slow the vehicle, no matter how much force he put on the pedal. Trial Tr. 468-69. Dr. Limpert further testified that, even at 32 miles per hour and without first tapping the brake pedal, he had to pull on the steering wheel with both hands in order to exert enough force on the brake pedal to slow the Explorer. Trial Tr. 466-67. Finally, Dr. Limpert testified that the curve on which Mr. Olson was driving when his vehicle left the road could not be navigated at 40 miles per hour if Mr. Olson was also attempting to brake against an open throttle.

In yet further support of her argument regarding the power-braking system, Ms. Olson sought to introduce the testimony of Casey Mulder and Wendy Crowell. Mulder, a former Ford test engineer, would have testified about the difficulty he experienced in braking when an Explorer that he was driving unexpectedly accelerated. Mulder was ultimately able to bring his Explorer under control, but he would have testified that, in general, when an Explorer unexpectedly accelerates, the driver will get a power assist only on the first press of the brake pedal. Any subsequent attempt to apply the brakes, Mulder would have said, will result in substantially less braking power, and the driver will have extreme difficulty in overcoming the acceleration. Mulder would have described the difficulty that he had in bringing his Explorer under control, even though he was a professional test driver.

Crowell was not a professional test driver, but simply an "average" Explorer owner, like Mr. Olson. Crowell would have told the jury that, several years ago, she was driving her 1995 Explorer out of a parking lot when the vehicle accelerated uncontrollably. Crowell stepped on the brake pedal with both feet and applied as much force as she could, but she was unable to slow the vehicle. Fortunately, she was able to steer the Explorer into an empty parking lot, shift the vehicle into neutral, and turn off the ignition.

The district court initially excluded the testimony of both Mulder and Crowell under Federal Rule of Evidence 403. When Ms. Olson again attempted to offer the two witnesses' testimony — this time in rebuttal — the district court again excluded it under Rule 403. (The district court also excluded Mulder as an inappropriate rebuttal witness.) Ms. Olson argues that the district court erred.

B. Analysis

Under Rule 403, relevant evidence may be excluded "if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." Fed.R.Evid. 403. We review a district court's exclusion of evidence under Rule 403 for a clear abuse of discretion. Stafne v. Unicare Homes, 266 F.3d 771, 776 (8th Cir.2001). The reason for this extremely deferential standard of review is obvious: A Rule 403 ruling — as much as any type of determination made by a district court — depends on factors that are uniquely accessible to the trial judge who is present in the courtroom and uniquely inaccessible to an appellate judge who must take the case on a cold record. This case illustrates the point.

No one can doubt that the testimony of Mulder and Crowell had probative value. If the testimony did not have probative value, it would not have been relevant, it would have been excluded under Rule 402, and a Rule 403 balancing would not have been necessary. What the district court had to determine, though, is how much probative value Mulder's and Crowell's testimony had. The amount of probative value of a piece of evidence is not static. Rather, it varies depending on such factors as the importance and complexity of the issue to which the testimony relates, the degree to which that issue is being contested, the other evidence that has already been introduced on the same issue, the attentiveness of the jury when that evidence was being introduced, and myriad other factors that can be fully assessed only by a judge who is present in the courtroom.

After the district court assessed the amount of probative value of the Mulder and Crowell testimony, it had to decide whether that probative value was substantially outweighed by six factors: (1) the danger of creating unfair prejudice; (2) the danger of confusing the issues; (3) the danger of misleading the jury; (4) the need to avoid undue delay; (5) the need to avoid wasting time; and (6) the need to avoid the presentation of cumulative evidence. Even more than assessing the amount of probative value, assessing these factors depends on what a trial judge sees and hears in the courtroom. For example, assessing the risk of confusing or misleading a jury depends to a substantial degree on the intelligence and attentiveness of the particular jurors — factors that are almost invisible to an appellate judge, but that can be appraised by the trial judge who questioned those jurors during voir dire (or who watched them being questioned by counsel) and who observed those jurors over the course of days or weeks of trial.

Here, the district court cited a couple of considerations that, in its view, substantially outweighed the probative value of Mulder's and Crowell's testimony. First, the district court expressed concern about turning the Olson trial "into a whole host of 8, 10, 12, 15 mini-trials on what went on in a 1996 Ford Explorer on the East Coast and the West Coast several years ago."...