Smith v. Volkswagen SouthTowne, Inc.

Citation513 P.3d 729
Decision Date30 June 2022
Docket Number20190382
Parties Lois SMITH, Appellant & Cross Appellee, v. VOLKSWAGEN SOUTHTOWNE, INC., Appellee & Cross Appellant.
CourtSupreme Court of Utah

513 P.3d 729

Lois SMITH, Appellant & Cross Appellee,
VOLKSWAGEN SOUTHTOWNE, INC., Appellee & Cross Appellant.

No. 20190382

Supreme Court of Utah.

Heard February 10, 2021
Filed June 30, 2022


Michael A. Worel, Colin King, Ricky Shelton, Paul M. Simmons, Salt Lake City, for appellant and cross appellee

Rodney R. Parker, Nathanael J. Mitchell, Salt Lake City, for appellee and cross appellant

Justice Petersen authored the opinion of the Court, in which Chief Justice Durrant, Associate Chief Justice Lee, Justice Himonas,* and Justice Pearce joined.

Justice Petersen, opinion of the Court:


¶1 Volkswagen SouthTowne (SouthTowne) sold Lois Smith a vehicle that was subject to a safety recall because of a defective fuel injection line. Shortly after buying the car, Smith drove it to Washington State to visit family. During the drive, she began smelling fumes and feeling sick. After seeing smoke coming from under the hood, she had the car towed to a Volkswagen dealership along the way. A mechanic found that the safety recall had not been performed on Smith's vehicle, and he observed that a cracked fuel line had sprayed diesel fuel throughout the engine compartment. Smith was later diagnosed with carbon monoxide poisoning. She filed negligence and strict liability claims against SouthTowne and other Volkswagen entities.

¶2 Smith prevailed at trial and the jury awarded her $2,700,000 in damages. SouthTowne then moved for judgment as a matter of law and a new trial. The district court granted SouthTowne's motions because it concluded Smith had failed to prove causation.

¶3 Smith now appeals the district court's reversal of the jury verdict in her favor. And although it prevailed post-trial, SouthTowne cross appeals, asserting that the district court incorrectly rejected some of the arguments it advanced in its post-trial motions.2 It also challenges some of the district

513 P.3d 736

court's evidentiary rulings, in the event that there is a new trial.

¶4 We reverse in part and affirm in part. We disagree with the district court's conclusion that Smith failed to prove the defective fuel injection line caused her to suffer carbon monoxide poisoning. But we affirm the district court's rulings rejecting the arguments SouthTowne attempts to revive in its cross appeal. Accordingly, we conclude that SouthTowne is not entitled to judgment as a matter of law or a new trial, and we order the jury's verdict to be reinstated.


¶5 In October 2011, Volkswagen's corporate office sent a "Mandatory Stop Sale Order" and "Safety Recall" to all of its dealerships, including SouthTowne. In the order, Volkswagen Corporate warned SouthTowne that certain Volkswagen cars had a defective fuel-injection line that could crack during operation and spray high-pressured fuel on the engine. Volkswagen ordered SouthTowne, "effective immediately," to quarantine the defective cars "in a secure area where [they could not] be made available for sale, lease, trade, or demo use until the recall repair ha[d] been performed."

¶6 But one month later, SouthTowne sold one of the defective cars to Lois Smith. In December 2011, a few weeks after purchasing the defective Volkswagen, Smith drove the car from Salt Lake City to Washington State to visit family. At some point during this drive, Smith began smelling what she described as "a gassy smell" and an "engine smell." Smith was initially unconcerned, because her stepfather had explained upon purchase of the vehicle that cars with diesel engines always "smell bad" and had warned her that any diesel-related odor might take some time to get used to.

¶7 Soon, however, Smith began to feel "extremely sick." She developed a headache "like [she]’d never felt before," she "felt like [she] was on fire," and she was "sick to [her] stomach." Smith also became "seriously sleepy."

¶8 After experiencing these symptoms, Smith pulled off the highway for a break. She noticed "a big cloud of smoke" coming from the engine. In reaction to the smoke, Smith had the vehicle towed to the nearest Volkswagen dealership.

¶9 At the dealership, a Volkswagen mechanic named Guadalupe Mejia discovered a defective fuel line. Mejia also observed that fuel had sprayed throughout the engine compartment. He observed somewhere "between ... a pint and a quart" of fuel on various parts of the engine, including where the engine houses the exhaust manifold and turbocharger, and another "foot in diameter" of diesel fuel pooled underneath the car.

¶10 Smith stayed in a motel for a few days as she waited for the dealership to repair her vehicle. During this time, she continued to feel symptoms similar to those she had experienced while driving her vehicle. She "just wanted to [ ] sleep" and "didn't care about eat[ing]." Apart from attending church, during which she fell asleep more than once, Smith could recall getting up only once while awaiting the repairs.

¶11 Because her symptoms persisted, Smith eventually went to an emergency room after arriving in Washington. Although the E.R. doctor could not detect any lingering or concerning traces of carbon monoxide in Smith's blood, the doctor presumed, based on her symptoms and description of events, that

513 P.3d 737

Smith had suffered carbon monoxide poisoning. The doctor also treated her for an upper respiratory infection.

¶12 After Smith returned to Utah, her friends and co-workers noticed significant changes in her behavior. Smith's employer observed that she was having unprecedented problems with her speech, memory, job performance, writing, and ability to connect with others. According to one supervisor, it was "like somebody switched the switch and turned off the light" inside her.

¶13 Shortly after her return from Washington, Smith visited the clinic of her primary-care physician. The clinic noted that Smith was having "difficulty talking" and that her "words [were] jumbled and slurred." Clinic notes also indicated that Smith was "having a difficult time concentrating," had a "headache on the left side of her head," and felt tired. And another physician noted that Smith was having "problems with word-finding and speech."

¶14 Smith visited a specialist in October 2012, just under a year after her trip. This specialist, neurologist Dr. John Foley, noted a "history of presumed carbon monoxide intoxication" from the year before. And based on Smith's reported history, he performed a neurological exam. Smith failed two of the tests. Dr. Foley's findings noted "[p]robable carbon monoxide intoxication with subsequent residual neurological dysfunction," as well as "ongoing affective disorder, cognitive dysfunction, fatigue and decreased balance." He recommended "[f]urther neurological work-up, including [an] MRI of the brain."

¶15 One year after this first consultation, in November 2013, Smith visited another specialist in carbon monoxide poisoning, Dr. William Orrison. After ordering an MRI and reviewing the scans of Smith's brain, Dr. Orrison noted that Smith had suffered brain damage "consistent with ... the clinical history of carbon-monoxide exposure."

Pre-Trial Litigation

¶16 Due to her injuries, Smith filed negligence and strict liability claims against Volkswagen AG, Volkswagen Group of America, Volkswagen de Mexico, and Volkswagen SouthTowne.4 During the litigation, Smith retained several experts.

¶17 One of these experts was Peter Leiss. Leiss was to opine on two issues: (1) whether carbon monoxide could be generated by the alleged diesel fuel leak; and (2) if so, whether there was a passageway for the carbon monoxide to travel from the engine compartment into the passenger compartment. Leiss was a mechanical engineer with twenty years of experience in the automotive industry, including with diesel engine vehicles and diesel fuel systems. He had no independent training in chemical engineering.

¶18 To form an opinion regarding whether carbon monoxide could have been produced by the diesel fuel leak in Smith's car, Leiss relied on a test conducted by a lab technician he worked with at Robson Forensics—a firm that employs about "a hundred full-time experts." The technician dropped two milliliters of diesel fuel onto a hot metal plate inside an enclosed, upside-down glass aquarium, while measuring the amount of carbon monoxide produced in parts per million (ppm) as the temperature of the hot plate rose. When the drops of diesel fuel hit the metal surface at a heat of 344 degrees Fahrenheit, the technician detected 295 ppm of carbon monoxide.

¶19 Smith also retained Dr. Lindell Weaver, a specialist in internal medicine, pulmonary critical care, and hyperbaric medicine with expertise in carbon monoxide poisoning. Dr. Weaver was to provide medical testimony about the extent of Smith's injuries and to opine on the cause of those injuries. Dr. Weaver based his conclusions on several factors, including his own experience in the field, his knowledge of the events surrounding Smith's alleged carbon-monoxide poisoning, his own interview with and physical examination of Smith, his evaluation of her brain scans, and the report created by Dr. Orrison, who passed away before trial and was...

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