Rodriguez v. Suzuki Motor Corp.

• Decision Date: 01 June 1999
• Docket Number: No. 80667,80667
• Parties: Kathryn RODRIGUEZ, Respondent, v. SUZUKI MOTOR CORPORATION, et al., Appellants, Deborah Dubis, Respondent.
• Court: Missouri Supreme Court

Page 47

996 S.W.2d 47

Kathryn RODRIGUEZ, Respondent, v. SUZUKI MOTOR CORPORATION, et al., Appellants Deborah Dubis, Respondent.

No. 80667.

Supreme Court of Missouri En Banc.

June 1, 1999.

Rehearing Denied June 29, 1999.

Robert B. Fiske, Jr., Jennifer G. Newstead, Davis, Polk & Wardwell, New York City, Frank N. Gundlach, Deirdre C. Gallager, Armstrong, Teasdale, Schlafly & Davis, St. Louis, Gene C. Schaerr, David J. Lewis, Frank R. Volpe, Nathan A. Forrester, Michael F. Wasserman, Sidley & Austin, Washington, DC, Jordan B. Cherrick, Thompson Coburn, St. Lewis, George F. Ball, Newport Beach, CA, William B. Hill, Jr., Atlanta, GA, for Appellants.

James E. Butler, Jr., Albert M. Pearson, III, George W. Fryhofer, III, Lee Tarte Wallace, Cale H. Conley, Butler, Wooten, Overby, Fryhofer, Daughtery & Sullivan, Atlanta, GA, Maurice B. Graham, The Graham Law Firm, St. Louis, John S. Wallach, Hoffman & Wallach, St. Louis, for Respondent.

Cheryl A. Callis, Kortenhof & Ely, St. Louis, for Deborah Dubis.

Charles H. Lockwood, II, Arlington, VA, David A. Fischer, John K. Hulston Hall, Columbia, Amicus Curiae Assn. of International Automobile Manufacturers, Inc.

Hugh F. Young, Jr., Executive Director, Product Liability Advisory Council, Inc., Reston, VA, Sherman Joyee, President American Tort Reform Association, Washington, DC, Thomas O. Baker, Paul S. Penticuff, Baker, Sterchi, Crowden & Rice, L.L.C., Kansas City, Evan M. Tager, Mayer, Brown & Platt, Washington, DC, Amicus Curiae Product Liability Advisory Council, Inc. & American Tort Reform Association.

Phillip D. Brady, Andrew D. Koblenz, V. Mark Slywynsky, Washington, DC, Thomas A. Sheehan, Shook, Hardy & Bacon, L.L.P., Kansas City, John A. Rogovin, John F. Niblock, Washington, DC, Amicus Curiae Automobile Manufacturers Assn.

J. Thomas Price, Mass. Bd. of Bar Overseers, Lourie & Cutler, P.C., Boston, MA, Amicus Curiae Students Against Driving Drunk.

Mark Arnold, Husch & Eppenberger, L.L.C., St. Louis, Amicus Curiae Students Against Driving Drunk & Mothers Against Drunk Driving.

Alyson C. Brown, General Counsel, Irving, TX, Amicus Curiae Mothers Against Drunk Driving.

STEPHEN N. LIMBAUGH, Jr., Judge.

This case comes before this Court for a second time and after a second trial, which, like the first, resulted in a judgment with both actual and punitive damages on plaintiff's products liability claim against Suzuki Motor Corp. (Suzuki). The case arose from a one-vehicle accident in Warren County involving a Suzuki Samurai, a sport utility vehicle (SUV), driven by co-defendant Deborah Dubis. Plaintiff, who was a passenger in the Samurai, was severely injured when it rolled over due to an alleged design defect. The judgment in the first trial was reversed for two reasons: 1) the failure to admit evidence offered by defendant Suzuki that the driver of the vehicle, codefendant Dubis, had been drinking; and 2) the failure to include in the punitive damages instruction a requirement that plaintiff must have proved her case by "clear and convincing" evidence. Rodriguez v. Suzuki Motor Corp., 936 S.W.2d 104 (Mo. banc 1996) (Suzuki I ). Suzuki now contends that, on retrial, the trial court erred in several other respects, including its rulings on two crucial evidentiary issues. In particular, the trial court refused to allow Suzuki to introduce a series of government reports showing that the Samurai had no design defect and refused to allow Suzuki to cross-examine one of plaintiff's expert witnesses concerning the methodology he used to determine that a design defect was present. On the basis of these claims, the judgment of the trial court is reversed, and the case is remanded for a new trial.

I.

As a preliminary matter, plaintiff contests this Court's jurisdiction to hear the appeal on the ground that Suzuki's jurisdictional allegations are pretextual. Suzuki bases this Court's jurisdiction on 1) the presence of questions involving the constitutionality of statutes, and 2) the presence of questions of general interest or importance. Given the dissent's vociferous position on the jurisdictional issue, a more thorough analysis than usual is warranted.

A.

This Court's jurisdiction of constitutional questions is controlled by article V, section 3, of the Missouri Constitution, which states, "The supreme court shall have exclusive appellate jurisdiction in all cases involving the validity of ... a statute or provision of the constitution of this state...." On the face of its jurisdictional statement, ¹ as well as under the "Points Relied On" in its brief, Suzuki challenges the constitutional validity of three Missouri statutes: section 537.760, RSMo 1994 (stating the elements of a products liability claim); section 510.263, RSMo 1994 (stating the procedures for punitive damages claims); and section 537.675(2), RSMo 1994 (requiring that 50 percent of all punitive damage awards be paid to the state's tort victim's compensation fund).

Even though a jurisdictional allegation may be proper on its face, this Court will not entertain the appeal if the allegation is pretextual. This proposition is reflected in the repeated holdings of the court of appeals that allegations concerning the constitutional validity of Missouri statutes must be "real and substantial, not merely colorable," AG Processing, Inc. v. South St. Joseph Indus. Sewer Dist., 937 S.W.2d 319, 322 (Mo.App.1996); Kansas City Star v. Shields, 771 S.W.2d 101, 103 (Mo.App.1989), although this Court has not used that exact language since the early 1970's, see, e. g., Kansas City v. Douglas, 473 S.W.2d 101 (Mo.1971). In 1976, article V, section 3 was amended to its present form, and as this Court has observed,

Earlier constitutional language about "construction of the constitution of the United States or of this state" has been completely eliminated, and the numerous decisions about the difference between "construction" and "application" of constitutional provisions are no longer of concern. The sole question is whether the validity of the statute is involved.

State ex rel. Union Electric Co. v. Public Service Commission, 687 S.W.2d 162, 164 (Mo. banc 1985).

In at least one case since the 1976 amendment, this Court based its jurisdiction on the notion that the constitutional claim was brought in "good faith." Beatty v. Metropolitan Sewer District, 700 S.W.2d 831, 834 (Mo. banc 1985). This was no abandonment of the "not merely colorable" test, but tacitly served to clarify the somewhat confusing use of the word "colorable," which has two recognized meanings: 1) "seemingly valid and genuine: having an appearance of truth, right, or justice: plausible;" and 2) "feigned, factitious, counterfeit." Webster's Third New International Dictionary 449 (1986). In the context of the "not merely colorable" test, the word "colorable" means feigned, fictitious or counterfeit, rather than plausible. In any event, this Court entertains plausible claims, which necessarily are made in good faith, but not feigned, fictitious or counterfeit claims, which necessarily are not.

One clear indication that a constitutional challenge is real and substantial and made in good faith is that the challenge is one of first impression with this Court. That is the reason for this Court's refusal to assume jurisdiction of cases when the precise constitutional questions raised have been settled by prior decisions of this Court, State ex rel. Doniphan Tel. Co. v. Public Service Comm'n, 369 S.W.2d 572, 575-76 (Mo.1963); Swift & Co. v. Doe, 311 S.W.2d 15, 21 (Mo.1958), and, conversely, that is the reason for the Court of Appeals' willingness to assume jurisdiction of such cases, Connors v. Leachman, 740 S.W.2d 376, 377 (Mo.App.1987); Renfrow v. Gojohn, 600 S.W.2d 77, 79 (Mo.App.1980). Notwithstanding the jurisdictional importance of the fact that a constitutional claim is one of first impression, conceivably, even those claims might be so patently false and frivolous that this Court will not have jurisdiction.

A particularly apt example of a constitutional challenge that met the real and substantial and good faith test because it raised a question of first impression is this Court's recent opinion in Riche v. Director of Revenue, 987 S.W.2d 331(Mo. banc 1999). Riche was a direct appeal in which this Court based its jurisdiction on appellant's challenge to the constitutionality of section 302.505, RSMo Supp.1997, which authorizes administrative driver's license suspension and revocation for driving while intoxicated. The statute was claimed to be invalid because it failed to include a requirement for probable cause or reasonable suspicion for the initial stop of the vehicle and driver in certain instances. The underlying question was whether the exclusionary rule, which would have precluded evidence from an unlawful stop in criminal cases, applies also in administrative driver's license suspension and revocation proceedings, which are civil cases. Id. at 333. Despite the fact that the United States Supreme Court has never held that the exclusionary rule applies to civil cases, this Court, having never addressed the issue itself, held that jurisdiction was proper. Id. Moreover, jurisdiction was proper even though this Court unanimously rejected the constitutional challenge on the merits. Id. at 335.

Significantly, the fact that a constitutional challenge used to invoke this Court's jurisdiction is ultimately rejected by this Court, as in Riche, does not mean that the challenge was not real and substantial and brought in good faith. See also, e.g., the following recent cases, in which this Court's jurisdiction was properly based on novel constitutional challenges even though the challenges were ultimately rejected on the merits, and indeed, were rejected by unanimous vote: Missourians for Tax Justice Education Project v. Holden, 959 S.W.2d 100 (Mo. banc 1997); Fust v. Attorney General, 947 S.W.2d 424 (Mo. banc 1997); State v. Schleiermacher, 924...