Vanderventer v. Hyundai Motor Am.

Decision Date26 October 2022
Docket NumberAppeal No. 2020AP1052
Citation405 Wis.2d 481,983 N.W.2d 1,2022 WI App 56
Parties Edward A. VANDERVENTER, Jr. and Susan J. Vanderventer, Plaintiffs-Respondents, v. HYUNDAI MOTOR AMERICA and Hyundai Motor Company, Defendants-Appellants, Kayla M. Schwartz and Common Ground Healthcare Cooperative, Defendants.
CourtWisconsin Court of Appeals

On behalf of the defendants-appellants, the cause was submitted on the brief of Patrick S. Nolan of Quarles & Brady LLP. and Matthew H. Lembke (pro hac vice) of Bradley Arant Boult Cummings LLP, Birmingham, AL.

On behalf of the plaintiffs-respondents, the cause was submitted on the brief of Timothy S. Trecek, Susan R. Tyndall, and Jesse B. Blocher of Habush, Habush & Rottier, S.C. of Milwaukee.

A nonparty brief was filed by Misha Tseytlin of Troutman, Pepper, Hamilton, Sanders, LLP of Chicago, IL; Lisa M. Lawless of Husch Blackwell, LLP, Milwaukee and Wendy Lumish (Pro Hac Vice Pending) of Bowman and Brooke LLP, Coral Gables, FL; Kendall W. Harrison of Godfrey & Kahn, S.C., Madison and Philip S. Goldberg of Shook Hardy & Bacon, LLP, Washington, DC.

Before Gundrum, P.J., Neubauer and Gill, JJ.


¶1 Hyundai Motor America and Hyundai Motor Company (together, "Hyundai") appeal from a judgment entered on a jury verdict finding them liable for personal injuries sustained by Edward A. Vanderventer, Jr. when the Hyundai Elantra he was driving was hit by another vehicle. The jury found Hyundai liable under theories of strict liability (design defect) and negligence and awarded more than $38 million in damages to Edward and his wife, Susan J. Vanderventer.1 We affirm.

¶2 Hyundai raises four issues on appeal. First, it argues that the trial court erred in allowing the Vanderventers to introduce testimony from two expert witnesses regarding a defect in the design of the Elantra's driver's seat and the causal link between that defect and the spinal fracture Edward sustained in the crash. Second, Hyundai contends that the court wrongly admitted evidence of certain recalls involving Hyundai vehicles to rebut the presumption of nondefectiveness codified in WIS. STAT. § 895.047(3)(b) (2019-20).2 Third, Hyundai contends that the court erred in admitting evidence of a different driver's seat design for the Elantra under § 895.047(4) and Wisconsin's evidentiary rule governing subsequent remedial measures, WIS. STAT. § 904.07. Finally, Hyundai argues that one of the Vanderventers’ experts was improperly allowed to present opinions that were not disclosed during discovery.

¶3 After careful review of the record and the parties’ arguments, we see no basis to disturb the jury's verdict. The issues raised by Hyundai concern evidentiary matters that were committed to the trial court's discretion. Our role as an appellate court is simply to ensure that its rulings did not constitute an erroneous exercise of that discretion. Here, we conclude that the court's rulings were grounded in the application of the correct legal standards to the relevant facts and were decisions that a reasonable judge could reach. Accordingly, we affirm.


¶4 On July 31, 2015, Edward, Susan, and two others were riding in the Vanderventers’ 2013 Hyundai Elantra when it was struck from behind by a vehicle driven by Kayla M. Schwartz. Susan escaped with minor injuries, but Edward, who was driving, sustained a fracture of the T6 vertebra in his spine, resulting in paraplegia.

¶5 The Vanderventers commenced this action against Hyundai, Schwartz, and others asserting claims of negligence and strict liability against Hyundai premised on an alleged defect in the Elantra's driver's seat. In particular, the Vanderventers alleged that Edward suffered "enhanced injuries" in the crash—that is, injuries "over and above those he would have sustained had his driver's seat not failed."

¶6 The Vanderventers settled their claim against Schwartz and her insurer before trial pursuant to Pierringer v. Hoger , 21 Wis. 2d 182, 124 N.W.2d 106 (1963).3 The case went to trial in January 2020 and lasted eighteen days. The parties presented testimony from twenty-six witnesses and introduced hundreds of documents, photographs, and other items into evidence.

¶7 The Vanderventers’ theory of defect focused on the headrest and the upright portion, or "seat back," of the driver's seat. Inside the seat back is a metal frame, which includes a horizontal crossbar at the top. Attached to this crossbar are two cylindrical tubes into which metal prongs connected to the headrest are inserted. In a rear impact, the seat serves as the primary source of protection for the driver and is supposed to act like a "catcher's mitt," providing "uniform support" to the driver's body as the driver's spine extends, or straightens, while pressing into the seat. An object that protrudes into the seat back can disrupt the uniform support and act as a "fulcrum"4 around which the spine can bend.

¶8 In brief, the Vanderventers argued at trial that the rear impact to the Elantra caused Edward's head and body to press against the headrest and seat back. This caused the horizontal crossbar at the top of the metal frame, which was made of hollow tube, to bend and buckle, allowing the two vertically-oriented tubes and the headrest prongs inside them to rotate forward towards Edward's back. The prongs formed a fulcrum at the T6 level of Edward's spine, which together with the ribs forms a rigid cage around the body's internal organs. The fulcrum stopped Edward's spine at the T6 level as the rest of his spine continued to move backward, causing the spine to fracture.

¶9 Hyundai disputed the Vanderventers’ theory. It argued that Edward's enhanced injuries were attributable to: (1) Schwartz's negligent failure to stop her car in time to avoid the collision and (2) Edward's "severe" case of diffuse idiopathic skeletal hyperostosis, or DISH, a degenerative spinal condition which caused his spine to become more "brittle, rigid, ... inflexible," and susceptible to fracture. A Hyundai expert explained that in a rear-impact collision, a healthy spine, which is normally curved, avoids serious injury by straightening in response to the forces from the collision. Hyundai presented evidence that the DISH in Edward's spine created calcifications that acted like "cement across the vertebrae," making his spine rigid and unable to straighten without fracturing during the accident. Hyundai's accident reconstruction expert testified that the vehicle's electronic data recorder indicated the "crash pulse" of the collision lasted only 160 milliseconds, about half as long as the blink of an eye. Given the extremely short duration of the collision, Hyundai argued that Edward's spine fractured before his head pressed against the headrest and before the metal frame inside the seat back deformed.

¶10 The jury returned a verdict finding Hyundai liable to the Vanderventers. On the strict liability claim, the jury found that the driver's seat was defective and unreasonably dangerous due to its design and that its defective condition was a cause of Edward's injuries. As to the negligence claim, the jury found that Hyundai had negligently designed or tested the driver's seat and that its negligence caused Edward's injuries. The jury apportioned eighty-four percent of the total fault for Edward's injuries to Hyundai, sixteen percent to Schwartz, and awarded damages to Edward and Susan totaling $38,164,263.34.5

¶11 The following sections discuss the testimony and evidence at issue in this appeal.

I. The Vanderventers’ Expert Testimony

¶12 The Vanderventers sought to establish the defective condition of the driver's seat and its causal link to Edward's injuries principally through the testimony of two expert witnesses, Dr. Kenneth Saczalski and Dr. Shekar Kurpad.

A. Dr. Kenneth Saczalski

¶13 Saczalski is a consulting engineer who has postgraduate degrees in applied mechanics, aerospace sciences, and engineering mechanics. He has conducted research in the areas of "structural crashworthiness, biomechanics, engineering mechanics and system engineering and design."6 Saczalski served on the National Motor Vehicle Safety Advisory Council starting in 1974, has held multiple teaching positions in the field of mechanical engineering, and has authored articles concerning motor vehicle crashworthiness and the forces and injuries involved in car accidents.

¶14 Saczalski testified that he was retained to conduct "a biomechanical assessment of the potential mechanisms of injury that occurred to Mr. Vanderventer." Saczalski relied on a variety of materials in forming his opinions, including the following:

(1) Discovery responses from Hyundai;
(2) A police report and photographs concerning the accident;
(3) Data from the Elantra's electronic data recorder regarding "what the change in speed of the vehicle was in the crash over what amount of time ... and ... the amount of force"; (4) Photographs from the "de-trimming" of the driver's seat and from "sled tests"7 that Hyundai ran;
(5) Design drawings for three Elantra seats discussed during the trial: (a) the "HD" seat that Hyundai used from 2006-2010; (b) the "MD/UD" (UD) seat that Hyundai used from 2011-2016 and that was present in the Vanderventers’ Elantra; and (c) the "AD" seat that Hyundai began using in 2017.
(6) An engineering change order related to the headrest for the UD seat;
(7) Information about recalls of Hyundai vehicles;
(8) Relevant Federal Motor Vehicle Safety Standards;
(9) Hyundai's seat specifications and test data;
(10) Saczalski's "finite element analysis" of the strength of the hollow crossbar tube;
(11) Diary entries from a Hyundai engineer involved in the design of the UD seat;
(12) Several exemplar seats manufactured by Hyundai and other vehicle manufacturers, including the three seats used at various times in the Elantra;
(13) The frame, fabric, and foam from the front passenger seat of the Vanderventers’ Elantra; and
(14) The

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