Stephen v. Ford Motor Co.

• Decision Date: 30 November 2005
• Docket Number: No. B175408.,B175408.
• Citation: 37 Cal.Rptr.3d 9,134 Cal.App.4th 1363
• Court: California Court of Appeals Court of Appeals
• Parties: Cheryl Lynn STEPHEN, Plaintiff and Appellant, v. FORD MOTOR COMPANY et al., Defendants and Respondents.

37 Cal.Rptr.3d 9

134 Cal.App.4th 1363

Cheryl Lynn STEPHEN, Plaintiff and Appellant, v. FORD MOTOR COMPANY et al., Defendants and Respondents.

No. B175408.

Court of Appeal, Second District, Division 1.

November 30, 2005.

Mitchell McKay, Whittier; Peters & Peters and Barbara J. Peters, Santa Monica, for Plaintiff and Appellant.

Snell & Wilmer, Richard A. Derevan and Michael S. McIntosh, Costa Mesa, for Defendant and Respondent Ford Motor Company.

Iverson, Yoakum, Papiano & Hatch, Arnold D. Larson, John A. Slezak, Los Angeles and Mary P. Lightfoot for Defendant and Respondent Bridgestone/Firestone North American Tire, LLC.

VOGEL, J.

Cheryl Stephen was injured in a single-vehicle accident when the tread separated from the right rear tire of her Ford Explorer. The Explorer was towed to a scrap yard, where an insurance adjuster took a few snapshots of the vehicle to establish that it was a total loss, and where Stephen's boyfriend took a few Polaroid pictures of the car when he and Stephen went to collect her personal belongings. The Explorer was then sold for scrap and the tire discarded. About a year later, Stephen sued Ford Motor Company and Bridgestone/Firestone North American Tire, LLC for damages, alleging the tire and the vehicle were defectively designed. At trial, the court excluded the testimony of Stephen's tire expert, substantially limited the testimony of her directional stability expert, then granted Ford's and Firestone's motions for nonsuit. Stephen appeals, challenging the evidentiary rulings and the nonsuits based on those rulings. We hold that expert testimony was necessary to establish Stephen's claims against both Ford and Firestone, that the tire expert's testimony was properly excluded because there was no foundation for his opinions or conclusions, and that the directional stability expert's testimony was properly limited for precisely the same reason. We affirm the judgment.

FACTS

A.

In August 1998, Cheryl Stephen's family purchased a used 1996 Ford Explorer. On September 29, 1999, Stephen felt a vibration, then lost control of the Explorer, which crashed into the center divider of the 91 Freeway, then rolled over. A California Highway Patrol officer who arrived shortly after the accident reported that the Explorer's right rear tire was "still inflated" but that its tread was "completely gone" (that is, it had detreaded, which means it had separated from the tire).¹ Although the front tires on the Explorer had been replaced about a month before the accident, the rear tires were the Firestone Radial ATX's that were on the vehicle at the time of its original sale by Ford.

At the time of the accident, the Explorer had been driven about 58,700 miles.

Stephen's insurer had the Explorer towed to a salvage company for storage. In early October, an adjuster took photographs of the Explorer to substantiate Stephen's claim, then declared the vehicle a "total loss." At about the same time, Stephen and her boyfriend went to the salvage yard to retrieve some CDs from the Explorer, and her boyfriend took some Polaroid photographs of the vehicle, some of which show that the right rear tire was still on the Explorer at that time. Both sets of photographs are amateurish, and none of the pictures are anything like those that would be taken by a tire expert documenting an inspection. In mid-October, the Explorer was scrapped and sold for salvage, and the tire was discarded.

B.

In September 2000, Stephen sued Ford Motor Company and Bridgestone/Firestone North American Tire, LLC, alleging that the Explorer was defectively designed by Ford, that the tire was defectively designed by Firestone, and that both Ford and Firestone were negligent.² Ford and Firestone answered, discovery ensued, and the case was tried in February and March 2004.

Ford and Firestone each filed motions in limine to exclude testimony by Stephen's experts, and a series of Evidence Code section 402 hearings were held to determine the admissibility of various opinions by H.R. Baumgardner (Stephen's tire expert) and David Renfroe (Stephen's vehicle stability expert).³ Ultimately, the trial court (for reasons discussed at length below) excluded Baumgardner's testimony in its entirety and imposed significant limitations on the scope of Renfroe's testimony.

Stephen proceeded to put on the remnants of her case, at the conclusion of which Ford's and Firestone's motions for nonsuit were granted. The court found Stephen had failed to present a prima facie case of negligence or strict liability vis-à-vis Firestone because she did not have any expert testimony to show the tire failed as the result of a design defect, and that Stephen had failed to present a prima facie case of negligence or strict liability vis-à-vis Ford because the evidence did not show the applicable standard of care or that Ford fell below it, or that the design of the Explorer was a substantial factor in causing her injuries, or that the design presented a substantial risk of harm, or that there were feasible alternative designs.

Stephen appeals from the judgment in favor of Firestone and Ford.

DISCUSSION

I.

Stephen contends the issues about Baumgardner's testimony go to its weight, not its admissibility, that the trial court should not have excluded his testimony, and that the nonsuit in favor of Firestone cannot stand. We disagree.

A Baumgardner's Testimony at the Section 402 Hearing

Stephen's theory is that the tread separated from her right rear tire because this tire, like all Radial ATX size P235/75R15 tires made by Firestone between 1990 and 1996, was defective. According to Baumgardner, there was an increase in the number of Firestone Radial ATX tire failures beginning with tires manufactured during 1990, and the failures peaked with tires manufactured during 1995 and 1996 (Firestone recalled all of its Radial ATX tires in 2000, after Stephen's accident). The defect, according to Baumgardner, was that "the rubber skim stock" between the inner and outer radial steel belts was of insufficient strength to hold the tire together when the vehicle was moving at high speed. He said there was a weakness in the "peel strength" which occurred, he said, because there was excessive sulfur in the "skim rubber recipe" Firestone used in manufacturing its tires. Because of this "systematic design defect" and based on his examination of the amateur photographs of Stephen's tire, Baumgardner concluded that Stephen's tire had failed due to the design defect inherent in Firestone's Radial ATX tires.⁴ There were a number of problems with Baumgardner's testimony.

Qualifications. Although he is a "tire engineer" who worked for Firestone for 27 years designing "bias ply" tires and performing "tire failure analyses" in the company's "retread division," Baumgardner did not work on Firestone's Radial ATX's or on any "steel belted radial tires." He retired from Firestone in 1982 and since that time has worked as a consultant. He is not a chemist (he has no background in rubber chemistry or rubber compounding), and he is not a licensed engineer (he has a bachelor's degree in industrial design).

Scientific Theory. Baumgardner's sulfur-related testimony was based on his review of work by other experts, and his design defect opinion was formed, he said, using a "Kepner-Tregoe" analysis, a technique based on the compilation, evaluation, and continuous refining of data (for example, the number of occurrences or trends, the time of occurrences, and similar bits of information from other supposedly similar tire failures). Baumgardner conceded that the Kepner-Tregoe method requires empirical testing to confirm the conclusions reached from an examination of the data, and admitted that no tests were done by him or anyone else on Stephen's tire (which had been discarded before this case was filed) or on any similar tire. Baumgardner conceded that he did not know of anyone using the Kepner-Tregoe analysis for forensic tire evaluation, that he himself had never used the analysis in any prior case, and that he was not aware of any peer review publication approving the Kepner-Tregoe analysis for that use.

The Amateur Photographs. Baumgardner used the amateur photographs as a substitute for testing. Although he did not know what kind of camera or lens had been used to take either set of photographs, and although he could only guess at the distance at which the photographs were taken (six to ten feet), and although the photographs did not show the size of the tire or its "D.O.T." number (which would have shown the date and place it was manufactured), Baumgardner testified that he nevertheless found the photographs sufficiently detailed to support his conclusion that the "failure was in the middle of the rubber." As for his inability to determine the time of manufacture Baumgardner said he "assumed" that, because the tire was on a 1996 Explorer, it was manufactured during 1995 or 1996.

The photographs (which we have examined) do not show the interior of the tire or the inside sidewall, and Baumgardner testified that he could see only 80 percent of the "outside" wall and "none of the inside." There are no photographs of the tread belt piece that detached from the tire. In response to a hypothetical question, Baumgardner admitted that, had he been shown similar photographs of a different manufacturer's tire, he would not have been able to opine with a reasonable degree of engineering certainty about the reason why the tread came off the tire or whether there was a manufacturing or design defect when the tire left the manufacturer's plan, and that it was only because he knew Stephen's tire was a Firestone tire that he considered the photographs sufficient to support his conclusion about this tire's failure.

Baumgardner conceded that he had never before testified that a tire was defective without first examining the tire itself, and he agreed that the photographs were insufficient to rule out...